The Obviously Impossible Attempt: A Proposed Revision to the Model Penal Code KYLE S. BRODIE* This article discusses the treatment of obviously impossible attempts under the Model Penal Code. Part I discusses the traditional common law distinctions between types of impossible attempts, as well as the Model Penal Code decision to eliminate the impossibility defense altogether. Part II considers the reasons for punishing attempt, and Part III concludes that the impossibility defense should be eliminated under both the subjectivist and objectivist views. Part IV raises the theoretical and pragmatic problems raised by punishing obviously impossible' attempts, as well as the Model Penal Code's attempts to solve those problems. Part V proposes that an element of "reasonableness" should be added to the Model Penal Code's definition of attempt, and points out other areas of criminal law which have included some element of reasonableness in their definition of attempt crimes. I. THE IMPOSSIBILITY DEFENSE The impossibility defense to attempt crimes applies to those instances where a defendant's actions could not possibly result in the. commission of the underlying crime.2 The crime is not prevented by some intervening event, such as detection by the authorities, nor is it prevented only by some accident, such as firing a gun at the intended victim but missing.3 Impossibility is raised as a defense when the crime is not committed because, given the factual or legal context, it was impossible for the action * Deputy Attorney General, State of California; B.A., University of California at Riverside; J.D., Southwestern University School of Law. This article represents the ideas and opinions of the author. It does not represent the opinions of the Attorney General of the State of California. 1. 4 CHARLES E. TORCIER, WHARTON'S CRIMINAL LAW, § 746 (14th ed. 1981) (hereinafter WHARTON'S CRIMINAL LAW). 2. See generally Christopher Bello, Annotation, Constructionand Application of State Statute Governing Impossibility of Consummation as a Defense to Prosecutionfor Attempt to Commit Crime, 41 A.L.R.4th 588 (1985). 3. LEO KATZ, BAD ACTS AND GUILTY MINDS: CONUNDRUMS OF THE CRIMINAL LAW 280 (1987). NORTHERN ILLINOIS UNIVERSITY LAW REVIEW [Vol. 15 to have resulted in the commission of the principal crime.4 For example, when a person tries to steal goods that are in fact his, it is impossible for that action to constitute larceny.5 Whether that impossibility precludes a prosecution for attempted larceny, however, is an entirely different matter.6 A. THE COMMON LAW DISTINCTIONS The debate surrounding the impossibility defense was in large part instigated by the confusion and frustration surrounding the common law history of impossibility.7 Therefore, that history needs to be understood in order to provide a context for the current debate. The common law offense of attempt was first established in England in 1784. 8 In 1846, the impossi- bility defense was considered for the first time.9 The common law courts soon developed a distinction between two types of impossibility: legal and factual. Legal impossibility occurs when the attemptor's intended act could not be a crime even if that act was completed." Factual impossibility occurs where the crime cannot be committed because of some physical circumstance unknown to the actor." Legal impossibility was generally a defense to an attempt charge, but factual impossibility was not. 2 Therefore, the dispositive question in an impossible attempt case was whether the attempt was factually or legally impossible. Certain actions could be easily classified as legally or factually impossible. For example, if a person were to hold an illicit poker game in a Las Vegas apartment, thinking and intending to break a law against gambling, no attempt has been committed, because it is impossible to gamble illegally in Las Vegas. This is often called "pure" legal impossibility. 3 If, however, a person were to 4. JOHN KAPLAN & ROBERT WEISBERG, CRIMINAL LAw 543-566 (1991). 5. People v. Jaffe, 78 N.E. 169 (N.Y. 1906). 6. Id.; cf People v. Gardner, 38 N.E. 1003 (N.Y. 1894); contra State v. Tropiano, 381 A.2d 828 (N.J. Super. Ct. Law Div. 1977). 7. See generally Jerome Hall, Criminal Attempt, 49 YALE L.J. 789, 836 (1940) (explaining the history behind the common law of attempt and the origins of the impossibility defense). 8. Rex v. Scofield, Cald. Mag. Cas. 397 (K.B. 1784). 9. Regina v. Goodchild, 175 Eng. Rep. 121 (N.P. 1864). 10. See generally PAUL H. ROBINSON, FUNDAMENTALS OF CRIMINAL LAW 491-511 (1988). 11. See generally J.C. Smith, Two Problems in Criminal Attempts, 70 HARv. L. REV. 422 (1956). There is some disagreement about the precise difference between legal and factual impossibility. However, for the purposes of this article, the above working definitions are sufficient. 12. See Booth v. State, 398 P.2d 863 (Okla. 1964) (listing examples of legal and factual impossibility). 13. Properly understood, legal impossibility would be restricted to cases of pure legal 1995] THE OBVIOUSLY IMPOSSIBLE ATTEMPT possess a package which he believed to be narcotics, but was in fact talcum powder, then the attempt to possess narcotics would be only factually impossible. 14 Therefore the impossibility of the attempt would be no defense. In most cases, however, courts could not clearly determine whether the defendant's attempt was legally or factually impossible. The distinction was so ineffective that different courts often found the nearly identical action either factually or legally impossible. For example, a person who shoots a stuffed deer, thinking it to be alive, is not guilty of an attempt to shoot a deer out of season. 5 But a person who shoots into an empty bed, believ- ing that it is occupied, is. guilty of attempted murder. 6 Despite the different results, these two cases are logically indistinguishable. In both instances the attemptor has fired a gun at a target, but has been mistaken about what that target represented. In the first instance the hunter thought the deer was alive, while in the second the actor thought the bed was occupied. Other cases contradict each other even more directly. For example, an attempt to illegally smuggle mail out of prison without the warden's knowledge, when the warden actually does know of the attempt to smuggle, has been called both legally impossible 7 and factually impossi- ble. 18 Commentators have been equally 'unable to find a clear or consistent dividing line between legal and factual impossibility.' 9 impossibility. The other cases of legal impossibility are in fact only factual impossibility. Although a full development of the argument is outside the scope of this paper, a great deal of the confusion between legal and factual impossibility stems from a misapplication of the legal impossibility doctrine. Another example of pure legal impossibility is the person who commits sodomy, intending to break the law, in a jurisdiction which has decriminalized sodomy. That person cannot be prosecuted for attempted sodomy, because the principal crime, sodomy in this example, must be proscribed by the relevant penal code. There must be some underlying crime to attempt. See GEORGE FLETCHER, RETHINKING CRIMINAL LAW 177 (1978) ("Even if we were inclined on theoretical grounds to punish this willingness to flout the law, we would not know what to call the offense or how to phrase the indictment. The actor cannot be charged with attempted homosexual activity, for attempts are parasitic on a punishable offense-in-chief."). 14. People v. Siu, 271 P.2d 575 (Cal. Ct. App. 1954). This view is almost universally accepted in the United States. See United States v. Everett, 700 F.2d 900, 904, n.8 (3d Cir. 1983) and the cases cited therein. 15. State v. Guffey, 262 S.W.2d 152 (Mo. Ct. App. 1953). 16. State v. Mitchell, 71 S.W. 175 (Mo. 1902). 17. United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973). 18. United States v. Craft, 419 F. Supp. 1264 (M.D. Pa. 1976), affd, 556 F.2d 569 (3d Cir.), cert. denied, 434 U.S. 863 (1977). 19. The list of articles which struggle with the distinction between legal and factual impossibility is quite formidable. See, e.g., Graham Hughes, One Further Footnote on 240 NORTHERN ILLINOIS UNIVERSITY LAW REVIEW (Vol. 15 Despite the inability of courts and commentators to consistently determine whether a case was one of factual or legal impossibility, the decision was usually dispositive. If the case were one of legal impossibility, the accused had an absolute defense; factual impossibility was irrelevant.20 B. THE MODEL PENAL CODE RESPONSE The drafters of the Model Penal Code 2' examined the case law surrounding the impossibility defense and decided to abolish the impossibili- ty defense altogether.22 In doing so, they embodied an increasing tendency to question the continuing validity of the impossibility defense. 23 The Model Penal Code defines attempt in section 5.01.24 Under Model Penal Code section 5.01, impossibility, factual or legal, is not a defense to attempt crimes. 21 The Model Penal Code generally adopts a subjectivist viewpoint, and Attempting the Impossible, 42 N.Y.U. L. REV. 1005 (1967); John S. Strahorn, Jr., The Effect of Impossibility on Criminal Attempts, 78 U. PA. L. REV. 962 (1930); John W. Curran, Criminal and Non-Criminal Attempts (pts. 1 & 2), 19 GEO. L.J. 185, 316 (1931); Edwin R. Keedy, Criminal Attempts at Common Law, 102 U. PA. L. REV. 464 (1954). 20. See generally Booth v. State, 398 P.2d 863 (Okla. 1964). 21. MODEL PENAL CODE (1980). 22. MODEL PENAL CODE § 5.05, commentary at 490-91 (1985) (impossibility defense is rejected because liability is "focused upon the circumstances as the actor believes them to be rather than as they actually exist").