The MPC Renunciation Defense

The MPC Renunciation Defense

At common law, a conspirator who changes course after agreeing has no defense to the conspiracy charge.¹ The offense was complete when the agreement was made, and on the traditional theory a completed crime cannot be uncommitted, so later conduct bears on sentencing rather than guilt.² The Model Penal Code breaks with that rule in § 5.03(6), which makes it an affirmative defense that the actor, after conspiring to commit a crime, "thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose."³ The Code calls this renunciation of criminal purpose, and it has two stringent requirements: the actor must have thwarted the conspiracy's success, and the renunciation must be both complete and voluntary.⁴ Because the defense erases liability for the conspiracy itself, including everything the actor did before changing course, it offers far more than the withdrawal rules studied earlier, which only end a member's responsibility for what happens afterward.⁵ The price is a stern test, since the law is being asked to wipe out a crime that was already complete.⁶

Each requirement answers a different concern, and separating the concerns explains the shape of the rule. Allowing any defense at all rests on the judgment that the bare agreement is not, by itself, so dangerous that later events cannot matter. A conspirator who truly renounces has also shown the absence of firm criminal determination that dangerousness would suggest, and the rule gives people a reason to call plans off before the harm occurs.⁷ The thwarting requirement does subtler work. A conspiracy involves other people, so when one member loses interest the rest can usually carry on, and the objective will generally be pursued despite that member's renunciation.⁸ A rule that excused anyone who merely quit would let a member walk away with a complete defense while the plan went forward, which rewards the exit and leaves the harm in place. Demanding that the actor actually defeat the plan means that complete relief goes only to someone who removes the danger the agreement created. The voluntariness requirement protects the first rationale: a member who stops only because the venture became risky has not changed purpose, so the reasoning about absent criminal determination does not reach that member.

The procedural posture follows the Code's usual pattern for affirmative defenses. The defendant must produce evidence supporting the defense, and the prosecution then carries the burden of persuasion under MPC § 1.12.⁹ States that have adopted renunciation do not all follow that allocation, and a majority of them place the burden of proving the defense on the defendant.¹⁰ The defense is also far from universal. Some modern codes relax the thwarting requirement by accepting a timely warning to the authorities or a substantial effort to prevent the crime, and a few allow renunciation only before an overt act.¹¹ California does not recognize renunciation at all.¹²

The Lisa illustration from earlier shows where the line falls. When Lisa merely stayed away from the planned crime scene, she satisfied neither requirement, and she could be convicted of the conspiracy.¹³ If her effort to stop the target offenses instead succeeds, in a way that reflects a complete and voluntary renunciation, she may invoke the defense, and it cuts off her liability for the conspiracy and for any attempts.¹⁴

The two versions differ in a single fact, which is whether the plan was actually stopped. Dalton's notice to Rojas and Wen is not wasted in the first version, because advising the others of his abandonment terminates the conspiracy as to him under the Code's duration rule and starts the limitations period running for him.¹⁵ Those are withdrawal effects, which the sections on withdrawal take up, and they leave the conspiracy charge itself in place. Students lose this issue when they treat telling the others and leaving as though it were renunciation.¹⁶

The three requirements fail at different rates, and the subsections below take them in the order in which they most often fail. Thwarting comes first, because quitting without stopping the plan is the most common shortfall. Voluntariness comes next, because motive is where otherwise sincere exits are lost. Completeness comes last, because a plan that is only postponed or redirected was never renounced.

Thwarting the Conspiracy

The first requirement of the renunciation defense is that the actor thwart the success of the conspiracy, and the phrase asks for more than quitting.¹⁸ Thwarting a conspiracy means ensuring that the co-conspirators who have not renounced do not achieve their objective.¹⁹ The reason for that demand lies in the difference between a conspiracy and an attempt. A lone attempter can usually stop the crime by stopping, because no one else is carrying it forward, so abandoning the effort and preventing the crime coincide.²⁰ A conspiracy has other members, and its objective will generally be pursued in spite of one member's renunciation.²¹ When one member walks away, the danger the agreement created therefore stays in place, and the Code reserves complete relief for conduct that actually removes it.

In practice, the usual way for a single member to defeat the plan is to tell the authorities in time. Ordinarily a timely report to law enforcement is considered sufficient, while simply withdrawing from the conspiracy is not.²² The two acts differ in their audience, and the audience determines what each can accomplish. Telling the co-conspirators that one is out ends the member's own role and, as the earlier sections showed, cuts off responsibility for what they do afterward, but it leaves the plan in the hands of people who remain free to carry it out. A report to the police puts the plan itself at risk of failure, which is the result the defense demands. Renunciation therefore turns on preventing success, while withdrawal turns on notifying the others.

The Lisa illustration shows the line between the two. In one variation she tells all of her co-conspirators that she will have no further involvement and leaves them, and Mark and Jane go on to commit a murder, a burglary, and a theft. Under the Code she has successfully withdrawn, so she is not responsible for the crimes committed after her withdrawal, but she has not thwarted the success of the conspiracy, so she may still be convicted of conspiracy.²³ In another variation she makes an effort to stop the target offense but never tells her co-conspirators she is out, and the effort fails. She has neither communicated a withdrawal nor thwarted the plan, so she gains nothing under either doctrine.²⁴ The modern approach holds the same line for any member who does not prevent the conspiracy's aims from being fulfilled: mere withdrawal is not enough.²⁵

Thwarting is judged by what happened, and the sincerity of the effort does not change the answer. If a notice to the authorities comes too late, or the police simply fail to stop the crime, the notice has not thwarted the success of the conspiracy and the renunciation defense does not prevail.²⁶ That result is hard on the diligent member, and the reason is the one already given: the defense exists to reward the removal of a danger, and a report that leaves the plan intact has not removed it. The failed report still has one effect. It starts the statute of limitations running for that member under § 5.03(7)(c), the same limitations consequence that the withdrawal sections described.²⁷

Okafor's conduct was identical in both versions, and only the outcome moved the answer. That is the feature that separates thwarting from withdrawal, which depends on what the member communicated to the others rather than on whether the plan survived. Some states regard the Code's result requirement as too severe and ask only that the actor make a substantial effort to prevent the crime.²⁸ Under that variation, Okafor's call in the second version could carry the defense even though the police did nothing, provided the renunciation was also complete and voluntary.

Students lose this issue when they treat a sincere but unsuccessful effort as thwarting under the Code, which asks whether the plan was actually defeated. A stem that names a jurisdiction requiring only a substantial effort changes the answer, so read the stem for the governing formulation before applying either version.

Voluntary Renunciation

The second requirement of the renunciation defense looks to why the member stopped. Section 5.03(6) demands a renunciation that is voluntary as well as complete, and the Code defines the word for all of Article 5: renunciation is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or make the criminal purpose more difficult to accomplish.³⁰ That definition is written in § 5.01(4) next to the attempt defense, but it says it applies within the meaning of the Article, and the conspiracy defense sits in the same Article.³¹ The same test therefore governs conspiracy, and a member who changes course because the chances of detection grew has not renounced voluntarily.³²

The motive inquiry follows from the reasons the defense exists. The Code permits renunciation because a conspirator who truly gives up the plan shows a lack of firm criminal determination, and so a lack of dangerousness, and because the law wants people to have a reason to call off their plans.³³ Both reasons depend on the explanation for stopping. A member who quits because police presence has increased has not lost the criminal purpose. That member has concluded that this attempt is now too costly, and the same purpose may revive when conditions improve. Such a member shows no reduced dangerousness, and a complete defense would reward a tactical retreat while creating no incentive at all, since the retreat would have happened anyway.

Each part of the definition fits that reason. Because the Code reaches motives held in whole or in part, a member cannot save the defense by pointing to conscience when fear of capture also pushed toward the exit, since any share of the decision traceable to a new risk taints it. Because the triggering circumstance must not have been present or apparent at the start, a danger the member already knew about when joining is not counted against the member. It was part of the calculation when the plan was made, so it cannot explain a later reversal. And because only circumstances that raise the odds of detection or make success harder are excluded, a purely internal change, such as a pang of conscience, leaves the renunciation voluntary.³⁴

The requirement also excludes a member who never chose to stop. In the Courtney illustration, Courtney agrees with Anna to sell prescription drugs, but Anna does not follow through and shuts Courtney out of the venture.³⁵ Courtney cannot complete the crime, yet she has no renunciation defense, because she did not voluntarily give up her objective.³⁶ The crime failed because of Anna's decision, and Courtney's purpose never changed. The reasoning matches the motive test: the defense rewards a change of purpose, and a member whose purpose is intact and whose participation was ended by someone else has changed nothing.

Courts have worked out the definition mostly in attempt cases, which use identical language and so show how the words are read. In State v. Alston the defendant was entitled to an abandonment instruction on an attempted carjacking charge where, once inside the vehicle, he had a change of heart, let the driver go, and told the driver to call the police.³⁷ Younger v. State came out the other way: the defendant failed to establish abandonment of an attempted armed robbery because he left when the intended victim confronted him, which was a response to circumstances that increased the probability of apprehension and made the crime harder to accomplish.³⁸ What distinguishes the two is the source of the decision. Alston's came from within, with nothing outside pressing on him, while Younger's was forced by an event that changed the odds. Gravens v. State falls on Younger's side, because a bank teller's questioning and unusually loud talk about the defendant's note raised the chance of detection. United States v. Desena shows the difficulty branch, since the defendant held fire on one occasion because a vehicle interfered with his line of sight and on another because the Hell's Angels happened to drive away from him rather than toward him.³⁹

Le Barron v. State adds a case in which the cause of stopping was a fact about the victim. The defendant assaulted a woman intending to rape her and dragged her into a shack, then left after she pleaded that she was pregnant and he saw her maternity clothes; the Wisconsin court rejected his abandonment claim.⁴⁰ It is an attempt case and says nothing about conspiracy. Whether the Code's definition would defeat his claim is debatable, since pregnancy raises neither the odds of detection nor the difficulty of the crime in the terms the definition uses.⁴¹ Its value here is as a reminder that courts ask why the actor stopped, and a discovery that ends the effort without any change of purpose is a poor candidate for a defense built on lack of dangerousness.

The two versions differ in one fact, which is the reason for the report. The thwarting requirement is satisfied in both, so voluntariness is the only requirement doing work, and it turns on Boyd's motive, since Boyd's conduct was identical in both versions. The inquiry runs best as a short sequence applied to the member's reasons.

Students lose this issue when they accept a stated change of heart as voluntary even though the stem also mentions a newly increased risk of getting caught, because the Code reaches motives held only in part.⁴² Voluntariness settles why the member stopped. The remaining requirement asks what the member gave up, namely whether the whole criminal project was abandoned or only this occasion.

Complete Renunciation

The third requirement asks what the member gave up. Section 5.03(6) demands a renunciation that is complete as well as voluntary, and the Code defines completeness in the sentence that follows its voluntariness definition: 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.⁴⁴ The sentence belongs to the Article's renunciation provision, so it reaches a conspirator's renunciation just as the voluntariness definition does, and some state conspiracy statutes spell out the same two limits.⁴⁵

Completeness is easy to blur with voluntariness, and one sentence separates them: voluntariness asks why the member stopped, while completeness asks whether the member gave up the criminal purpose altogether or only this occasion of it. The reason for the second requirement comes from the reason for the defense. The Code excuses a member who backs out because the agreement by itself does not show enough dangerousness to justify punishment once the member has truly turned away from the plan.⁴⁶ That reasoning works only if the turning away is real. A member who merely postpones or redirects the effort has abandoned nothing, because the determination that produced the agreement is intact and is waiting for better timing or a different target. A complete defense for that member would reward a change of calendar or address while leaving the danger exactly where it was.

Courts have worked out the definition mostly in attempt cases, which use identical language. In United States v. Desena the court found the defendant's abandonment of an attempted assault involuntary and, in any event, incomplete, because the effort had been suspended rather than called off permanently.⁴⁷ That is postponement in its plainest form. United States v. Dworken, a drug-sale case, held the abandonment incomplete because the defendant had been thwarted by a failure to agree on price, so the abandonment was particular to that transaction and did not extend to possession of narcotics generally.⁴⁸ People v. Acosta shows transfer: the defendant rejected one quantity of cocaine because he was dissatisfied with its quality but went on seeking other cocaine, and the New York court required abandonment of the overall criminal enterprise.⁴⁹ The three decisions share a measure. Completeness looks at the whole criminal project, and a failed or abandoned occasion within that project does not satisfy it.

The three versions differ in one fact, which is what Delgado meant to do after the call. The outward conduct is identical, so completeness is the only requirement carrying the result. Because intent is internal, a fact-finder reads it from what the member said and did afterward, such as talk of a next attempt or steps to line up a new target. The transfer limb is worded in terms of another but similar objective or victim, so the question is whether the same criminal project continues under a new target.⁵⁰

Students lose this issue when they treat stopping on this occasion as giving up the purpose, because completeness looks to the whole criminal project and the failed attempt is only one part of it. The three requirements are cumulative, so a member who fails any one of them loses the defense, and what remains for that member is the law of withdrawal taken up next.⁵¹