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Crossing the Rubicon: An Argument for Adopting the Model Penal Code Formulation of Criminal Attempt in Massachusetts
1

MATTHEW C. CAMPBELL

ABSTRACT
The proximity test for evaluating criminal attempt, principally set down by Justice Oliver Wendell Holmes Jr., has served as the law in the Commonwealth of Massachusetts for well over 100 years. But Justice Holmes recognized that tradition should not override rational policy , and the law of criminal attempt has evolved considerably since 1901. Several Massachusetts court decisions strongly suggest the need for a change in the statutory formulation of attempt in the Commonwealth. These decisions are the direct consequence of the Massachusetts proximity test a test that has been described as vague, nebulous and unintelligible to a jury. The Commonwealth should adopt the Model Penal Code s substantial step test for attempt because it addresses the shortcomings inherent in the proximity approach. The Code recognizes that manifestations of dangerousness, not elusive concepts of proximity, are what necessitate intervention by law enforcement. In addition, the Model Penal Code provides much-needed clarity, with specific examples of recurring situations that constitute attempts, and an abundance of case law that may be drawn upon for persuasive guidance.

R. A. D UFF, CRIMINAL A TTEMPTS 39, 43, 390 (1996) (analogizing the point at which an actor moves from preparation to attempt as cross[ing ] the Rubicon.). When Caesar crossed the Rubicon in 49 B.C. he had invaded the Roman Republic and there was no going back. Thus, the expression crossing the Rubicon became synonymous over the years with taking an irreversible step. ROBERT HENDRICKSON, THE FACTS ON FILE ENCYCLOPEDIA OF WORD AND P HRASE O RIGINS 186 (3d ed. 2004). Candidate for Juris Doctor, New England Law | Boston (2013).

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INTRODUCTION

imply put, the basic principle underlying criminal attempt is that when specific conduct is criminalized, an attempt to engage in that conduct is also criminal.2 Yet courts generally hold that merely preparing to engage in prohibited conduct is not criminal. 3 Creating a formulation that definitively marks the line where a person crosses the Rubicon from preparation to attempt, however, is difficult if not impossible.4 The efforts to define this boundary differ among jurisdictions based on varying conceptions of what acts are sufficient to establish liability.5 The Massachusetts approach evaluates the sufficiency of an overt act in terms of its proximity to the completed crime.6 In theory, the proximity required under this test should shift based on the gravity of the crime and the seriousness of any threatened danger. 7 However, just how grave or serious the underlying crime, facts, or circumstances must be to meaningfully affect the relative proximity required is not made clear by Massachusetts case law.8 As applied, this approach typically does not attach criminal responsibility until an act has been committed that is on the very brink of accomplishing the target crime.9 One major drawback of placing the line of liability so close to completion is that police intervention may be dangerously delayed to preserve an attempt conviction. 10 In addition, the proximity test often fails to reach situations where the attempt is incomplete due to some fortuitous circumstance, e.g., the intended

G IDEON YAFFE , A TTEMPTS: IN THE P HILOSOPHY OF A CTION AND THE CRIMINAL LAW 21 (2010); Barbara Baum Levenbook, Prohibiting Attempts and Preparations, 49 UMKC L. REV . 41, 41 (1980). See Levenbook, supra note 2. Jerome Hall, Criminal AttemptA Study of Foundations of Criminal Liability, 49 YALE L.J. 789, 821 (1940); see also O LIVER WENDELL HOLMES, THE COMMON LAW 56 (Mark DeWolfe Howe ed. 1963) (Eminent judges have been puzzled where to draw the line, or even to state the principle on which it should be drawn.).
4 3

Commonwealth v. Hamel, 752 N.E.2d 808, 815 n.12 (Mass. App. Ct. 2001). See Commonwealth v. Peaslee, 59 N.E. 55, 56 (Mass. 1901) (explaining that the test for attempt is based on proximity that may vary according the circumstances). 7 Commonwealth v. Bell, 917 N.E.2d 740, 747 (Mass. 2009); see also HOLMES, supra note 4, at 56-57 (With an object which could not be used innocently, the point of intervention might be put further back . . . .).
6

See infra Part III.A. See Commonwealth v. Kennedy, 48 N.E. 770, 770-71 (Mass. 1897) ([T]he act done must come pretty near to accomplishing that result before the law will notice it.). 10 See S tate v. Reeves, 916 S .W.2d 909, 913-14 (Tenn. 1996) (noting that one of the major criticisms of the proximity test is that it delays police intervention).
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victim could not be found.11 Nor does it easily reach situations where a factual impossibility is present, e.g., police sting operations where no actual victim exists.12 Nevertheless, in either case, the individual should not be relieved from liability when his or her acts signify moral blameworthiness, dangerousness, and need of restraint and rehabilitation.13 This Note argues that the Commonwealth of Massachusetts should adopt the Model Penal Code formulation of attempt because it is a person s manifestation of dangerousness not elusive concepts of proximity that necessitates intervention by law enforcement. 14 The Model Penal Code view is that an actor crosses the Rubicon from preparation to attempt once he or she takes a substantial step toward committing a crime. 15 As applied, the substantial step test broadens the offense of attempt by moving the boundary between preparation and attempt further away from the final act.16 This expansion provides law enforcement with more flexibility to intervene in an unfolding criminal situation without fear of losing an attempt conviction.17 This expansion also permits courts to take a broader view of the totality of the circumstances to properly evaluate the dangerousness of the actor.18 Finally, the Model Penal Code provides much-needed clarity in this area of the law.19 The Model Penal Code provides specific examples of recurring situations that constitute attempts if the other requirement s of liability are satisfied.20 These specific illustrations, combined with an abundance of case law interpreting the substantial step test, provide clear guidance to the judges and juries responsible for applying it. 21

11 See, e.g. , Commonwealth v. Ortiz, 560 N.E.2d 698, 699-700, 702 (Mass. 1990) (describing the facts where the Ortiz brothers loaded a gun and searched the neighborhood of their intended victim, but were unable to locate him). 12 G LANVILLE WILLIAMS , CRIMINAL L AW: T HE G ENERAL P ART 203, at 631 (2d ed. 1961) (One who attempts an impossible crime can never be in dangerous proximity to success.). 13 James J. Gobert, The Fortuity of Consequence, 4 CRIM . L.F. 1, 20-21 (1993). 14 See infra Part IV. 15 See M ODEL PENAL CODE AND COMMENTARIES 5.01 cmts. 1, 6, at 299, 329 (Offic ial Draft and Revised Comments 1985).

Id. 5 intro., at 295, 5.01 cmt. 6(a), at 329. See id. 5 intro., at 294 (asserting a legal basis must be provided that facilitates timely intervention by law enforcement and properly serves the preventive purpose of attempt law).
17 18 See YAFFE , supra note 2 , at 27, 29, 224 (describing the Model Penal Codes approach to evaluating attempt as requiring evidence of the dangerousness of the actor). 19 See infra Part IV. 20 M ODEL P ENAL CODE 5.01 cmt. 6(b), at 332. 21 See United S tates v. Hsu, 155 F.3d 189, 202 n.19 (3d Cir. 1998) ([T]he Model Penal Code (MPC) test for attempt . . . is consistent . . . with the great weight of modern precedent.).

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Part I of this Note provides a brief overview of the law of attempt, including a closer examination of the proximity and Model Penal Code tests used for identifying an act sufficient to establish liability. Part II traces the evolution of the Massachusetts formulation of attempt from case law interpreting the statute to the unsuccessful legislative efforts to replace it. Part III provides a comprehensive evaluation of the Massachusetts proximity test, an analysis of its shortcomings, and the reasons why it should be replaced. Part IV offers the solution adopting the Model Penal Code formulation of attempt in the Commonwealth of Massachusetts. Finally, Part V discusses an alternative to wholesale adoption of the Model Penal Code. Massachusetts could feasibly broaden attempt liability for the specific crime of attempted rape of a child given its exceptional depravity and cruelty. This half-measure would not be ideal, how ever, as a more comprehensive reform of Massachusetts attempt law is in order. I. Overview of the Law of Attempt A. Purpose and Elements The law of attempt springs from the idea that there is just as much need to stop, deter, and reform a person who has unsuccessfully attempted or is attempting to commit a crime than one who has already committed such an offense.22 Punishing attempt serves as a valuable law enforcement tool because without it officers would lack the authority to arrest a wrongdoer before the target crime is committed.23 Attempt law also permits the prosecution and conviction of dangerous individuals who are likely to represent an ongoing threat to society even though the crime they intended to commit was ultimately unsuccessful. 24 Indeed, a w rongdoer who has failed to achieve a criminal goal on one occasion may present a greater continuing danger to the public than the person who succeeded. 25 General attempt statutes have been enacted in most American jurisdictions.26 In addition, some states have passed legislation that makes it a crime to attempt certain specific offenses.27 For example, Massachusetts has specifically made attempted arson a crime independent from the state s general attempt statute.28 Most early attempt statutes were overly broad

WAYNE R. LAFAVE , CRIMINAL LAW 615 (5th ed. 2010). JOSHUA D RESSLER, UNDERSTANDING CRIMINAL LAW 388 (5th ed. 2009). 24 See id. 25 L AFAVE , supra note 22, at 616. 26 Id. at 614; see also D RESSLER, supra note 23, at 380. 27 L AFAVE , supra note 22, at 614; see M ODEL P ENAL CODE AND COMMENTARIES 5.01 cmt. 1, at 299 (Official Draft and Revised Comments 1985).
23 28

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and generally failed to define attempt with any particularity. 29 In the absence of meaningful legislative guidance, the courts have interpreted these laws by following the principles of attempt liability developed at common law.30 Influenced largely by the Model Penal Code, modern codifications have defined attempt with greater specificity. 31 A criminal attempt occurs when a person, with intent to commit a crime ( mens rea ), performs one or more acts in furtherance of that intent ( actus reus ).32 Criminal attempts generally fall into two categories.33 The first category occurs when the wrongdoer performs all the acts he or she set out to do, but fails to achieve his or her criminal objective. 34 For example, when a wrongdoer loads a gun, drives to the home of the intended victim, and then fires at the intended victim but misses. 35 These attempts are known as complete but imperfect attempts, 36 or last proximate act 37 attempts. A finding that criminal liability arises under this category of attempt rarely, if ever , arouses any controversy.38 The second category occurs when the wrongdoer performs some of the acts necessary to perpetrate the crime but abandons the effort or is prohibited from continuing, e.g., the police intervene before he or she completes the attempt.39 These attempts are commonly referred to as incomplete attempts.40 B. The Mens Rea Element Criminal attempt is a specific intent crime, meaning the intent must be to commit the target offense.41 For example, if a prosecutor charges a defendant with attempted larceny, he or she must prove that the defendant

29 M ODEL P ENAL CODE , 5.01 cmt. 1, at 299-300 (In most instances, there was nothing more than a prohibition against an attempt to commit the crime and accompanying liability.); see LaFave, supra note 22, at 614. 30 L AFAVE , supra note 22, at 614; see also M ODEL P ENAL C ODE 5.01 cmt. 1, at 300. 31 M ODEL P ENAL CODE 5.01 cmt. 1, at 300. 32 L AFAVE , supra note 22, at 582. 33 D RESSLER, supra note 23, at 379. 34 Id. at 379-80. 35 Id. 36 Id. at 379. 37 M ODEL PENAL CODE AND C OMMENTARIES 5.01 cmt. 4, at 321 (Official Draft and Revised Comments 1985). 38 39 40 41

See Commonwealth v. Bell, 917 N.E.2d 740, 755 (Mass. 2009) (Gants, J., dissenting). D RESSLER, supra note 23, at 380. Id. See D RESSLER, supra note 23, at 391; LAFAVE , supra note 22, at 583-85.

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intended to permanently deprive the owner of the property at issue. 42 Although intent is the essence of attempt, mere contemplation of committing a crime is not enough to give rise to criminal liability. 43 There must also be an act in furtherance of that intention. 44 B. The Actus Reus Element The definition of the act element is often problematic, raising difficult questions about where liability should attach along a continuum stretching from first to last acts.45 More precisely, the difficulty lies in identifying the point where preparation ends and attempt begins. 46 The answer to this preparation-attempt problem varies and often turns on whether the state s attempt law focuses on the act or the actor.47 Where the focus is on the act, as in Massachusetts, the act may be required to come pretty near to accomplishing [the] result before the law will notice it.48 This formulation reflects a philosophy of objectivism, reasoning that liability should be principally determined by the externally objective aspects of a person s actions.49 The act has independent significance and is a critical component of the wrong the law is designed to punish.50 Conversely, where the law is focused on the actor, like the Model Penal Code formulation, the act is evaluated as evidence of criminal intention.51 This second approach reflects a philosophy of subjectivism, that focuses primarily on an actor s subjective intentions, which indicates dangerousness and bad character.52 Thus, state laws generally vary on where the proverbial crossing of the Rubicon takes place based on these two underlying rationales.53 Where attempt law is directed at punishing

See 14A M ASSACHUSETTS P RACTICE SERIES: SUMMARY OF BASIC LAW 7.133 (4th ed. 2006). D UFF, supra note 1, at 33. 44 Id. 45 Id. at 34. 46 People v. Terrell, 459 N.E.2d 1337, 1340 (Ill. 1984) (describing the line between preparation and attempt as one of the most troublesome problems in this area of the law).
43

42

See D UFF, supra note 1, at 34-35; MODEL P ENAL CODE AND COMMENTARIES 5.01 cmt. 1, at 298 (Official Draft and Revised Comments 1985). 48 Commonwealth v. Kennedy, 48 N.E. 770, 770 (Mass. 1897); see also D UFF, supra note 1, at 46.
49 D UFF, supra note 1, at 193; see also HOLMES , supra note 4, at 42 (All law is directed to conditions of things manifest to the senses.).

47

See HOLMES, supra note 4, at 35. See id. 52 Dressler, supra note 23, at 385. 53 See D UFF, supra note 1, at 34. Compare People v. Patterson, 734 N.E.2d 462, 470 (Ill. App. Ct. 2000) (arranging for sexual relations with decoy minor, combined with traveling to agreedupon place constituted a sufficient overt act to establish attempted aggravated sexual abuse),
51

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acts, this line is crossed later on the continuum than when the focus is on the actor.54 1. The Proximity Approach

Proximity tests focus on the actor s conduct and examine how close that conduct comes to accomplishing the intended crime. 55 The strictest form of this test requires the accused to take the very last step within his or her power to bring about the intended result. 56 Another variation focuses on whether the defendant committed an overt act that was physically proximate to the completed crime.57 Yet another approach, attributed to Justice Oliver Wendell Holmes Jr., is the dangerous proximity test.58 The dangerous proximity test examines physical and temporal proximity in conjunction with the seriousness and probability of the crime. 59 This objectivist formulation reflects the perspective that liability arises only if the actor comes dangerously close to accomplishing his or her criminal goal.60 The Massachusetts approach exhibits many of the characteristics of the dangerous proximity test, but the Supreme Judicial Court rejected this specific label in Commonwealth v. Bell .61 2. The Model Penal Code Approach

The most prevalent approach to defining the act element required for criminal attempt in the United States is the Model Penal Code s substantial

with Commonwealth v. Pitts, No. 08-P-1596, 2010 WL 841292, at *1-2 (Mass. App. Ct. Mar. 12, 2010) (arranging for sexual relations with a decoy juvenile female and traveling to a predetermined location at an agreed upon time was not sufficient to show the defendant undertook an overt act). But see Commonwealth v. Buswell, 979 N.E.2d 768, 779 -80 (Mass. App. Ct. 2012) (arranging for sexual relations with a fictitious juvenile female and traveling to a predetermined location was a sufficient overt act to establish attempt liability). 54 See Paul H. Robinson, Testing Lay Institutions of Justice: How and Why? , 28 HOFSTRA L. REV . 611, 623 (2000); see also M ODEL P ENAL CODE AND COMMENTARIES , 5 intro., at 294-95 (Official Draft and Revised Comments 1985) (explaining that the Model Code sets the line between attempt and preparation further away from the final act). 55 D UFF, supra note 1, at 53. 56 L AFAVE , supra note 22, at 623-24. 57 See id. at 624-25 (The emphasis is not so much upon what the defendant has done as upon what remains to be done, and the time and place at which the intended crime is supposed to occur take on considerable importance.); D RESSLER, supra note 23, at 398-99. LAFAVE , supra note 22, at 625; D RESSLER, supra note 23, at 399. See D RESSLER, supra note 23, at 399; LAFAVE, supra note 22, at 625; M ODEL P ENAL CODE AND COMMENTARIES 5.01 cmt. 5(b), at 322-23. 60 Robinson, supra note 54, at 622-23. 61 See 917 N.E.2d 740, 748 n.13 (Mass. 2009) (noting that the Court has never used the phrase dangerous proximity when analyzing attempt).
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step test.62 Instead of emphasizing how close the person came to completing the crime, the Model Penal Code focuses on the actions the person took toward committing the crime.63 This subjective approach reflects the Code s primary purpose, which is to neutralize demonstrably dangerous individuals as opposed to deterr ing proximate acts.64 Thus, the Model Penal Code test draws the line of moral blameworthiness much earlier than the various proximity tests.65 Sections 5.01(1)(a) and 5.01(1)(b) of the Model Penal Code address situations where the actor has done all he [or she] intends to do, but where the crime nevertheless has not been committed. 66 These represent the complete but imperfect or last proximate act category of attempts.67 Section 5.01(1)(c) covers incomplete attempts where the actor has not yet done all that he or she intends but has taken a substantial step in a course of conduct planned to result in a crime. 68 Only conduct that strongly corroborates a criminal purpose is regarded as a substantial step. 69 The Model Penal Code provides seven illustrations of conduct that legally constitute a substantial step.70 These examples include: (1) searching for the victim; (2) enticing the intended victim to go to the contemplated place of the crime; (3) reconnoitering the crime scene; (4) unlawfully entering the location contemplated for the commission of the crime; (5) possessing tools to be employed in committing the crime, which are specially designed for unlawful use; (6) possessing tools to be employed in committing the crime at or near the crime scene; and (7) soliciting an innocent agent to perform an element of the crime.71 C. The Defense of Impossibility There is consensus among all courts that factual impossibility is not a cognizable defense to criminal attempt. 72 A factual impossibility exists

62 See D RESSLER, supra note 23 , at 413 & n.190 (explaining that Dresslers research shows that most federal courts and at least twenty -five states have [adopted] the Model Penal Codes substantial step standard.) . 63 See Robinson, supra note 54, at 623. 64 D UFF, supra note 1, at 53. 65 See id. at 54-56. 66 M ODEL P ENAL CODE AND COMMENTARIES , 5.01 cmt. 1, at 299 (Official Draft and Revised Comments 1985). 67 68 69 70 71 72

Id. 5.01 cmt. 4, at 321; see D RESSLER, supra note 23, at 379. M ODEL P ENAL CODE 5.01(1)(c) (1962) (emphasis added). Id. at 5.01(2). See id . Id. at (a)-(g). LAFAVE , supra note 22, at 633.

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when the illegal act cannot be physically accomplished. 73 A simple, often cited example is when the defendant has tried to pick an empty pocket. 74 The general rationale for abolishing this defense is that the defendant s mental state is no different from that of a person who successfully commits the target crime.75 Legal impossibility, on the other hand, is generally recognized by courts as a defense to attempt.76 Legal impossibility occurs when the action undertaken by the defendant was not illegal even though he or she believed it was a crime.77 For example, when a person believes they are receiving stolen property but the property was not actually stolen. 78 Consistent with a subjectivist approach, the Model Penal Code eliminates both impossibility defenses (legal and factual) on the theory that the mere fact that the intended crime was impossible does not make the actor any less dangerous.79 The Model Penal Code does, however, recognize the affirmative defense of renunciation of criminal purpose.80 Thus, a person is not guilty of attempt if (1) he or she abandons his or her effort to commit the crime or otherwise prevents its commission and (2) his or her conduct manifests a complete and voluntary renunciation of the criminal purpose.81 II. The Massachusetts Formulation of Attempt The Massachusetts general attempt statute dates back to 1832 and was most recently amended in 1924.82 The crime of attempt is statutorily

BLACKS LAW D ICTIONARY 824 (9th ed. 2009). Id.; see, e.g., United S tates v. Conway, 507 F.2d 1047, 1050 (5th Cir. 1975). 75 See L AFAVE , supra note 22, at 634; see also S tate v. Moretti, 244 A.2d 499, 503-04 (N.J. 1968) ([W]hen the consequences sought by a defendant are forbidden by the law as criminal, it is no defense that the defendant could not succeed in reaching his goal because of circumstances unknown to him.). 76 B LACKS L AW D ICTIONARY 824 (9th ed. 2009). 77 Id. 78 See Herbert Wechsler et al., The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 COLUM . L. REV . 571, 578 (1961).
74 79 M ODEL PENAL CODE AND C OMMENTARIES 5.01 cmt. 3, at 307, cmt 3(a), at 307-09, cmt. 3(b), at 315-16 (Official Draft and Revised Comments 1985) (stating the Model Penal Code is designed to reject the defense of impossibility and [t]he law of attempts . . . should be concerned with manifestations of dangerous character as well as preventive arrests); see also D RESSLER, supra note 23, at 406, 410-11 (explaining the influence of the Code in eliminating the defense of legal impossibility in most jurisdictions). 80 M ODEL P ENAL CODE 5.01(4) (1962). 81 Id. According to Professor Dresslers research, at least twenty -two states recognize the Model Penal Codes renunciation defense. D RESSLER, supra note 23, at 413 n.190. 82

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defined at General Laws c. 274, 6 and provides that whoever attempts to commit a crime by doing any act toward its commission, but fails in its perpetration, or is intercepted or prevented in its perpetration, shall, except as otherwise provided, be punished.83 The Massachusetts proximity test finds its roots in two opinions authored by Justice Oliver Wendell Holmes at the turn of the century: Commonwealth v. Kennedy and Commonwealth v. Peaslee.84 With these two opinions, Holmes took the opportunity to create a test for criminal attempt that reflected his philosophy of external liability standards.85 According to Holmes, criminal attempt should be primarily determined by objectively assessing external acts rather than the actor s actual intent.86 This view was articulated by Holmes in discussing the proximity test in Kennedy : the aim of the law is . . . to prevent certain external results, the act done must come pretty near to accomplishing that result before the law will notice it.87 Holmes further explained that this proximity requirement would vary under the circumstances of each case according to the gravity of the crime, the uncertainty of the result, and the seriousness of the apprehension.88 In the 1901 case Commonwealth v. Peaslee, Holmes identified two distinct classes of attempt cases.89 The first was the so-called last act class of attempt, which occurs when a person commits the last act necessary to complete the offense but fails due to some mistake in judgment, such as when a gun is fired at an intended victim but the bullet misses. 90 In the second class of attempt, the person s acts occur before the last act is committed and are generally still considered in the preparations stage.91 The act in this second class of cases must come very close to accomplishing the substantive offense to give rise to attempt liability. 92 The facts of the

Id. See Commonwealth v. Kennedy, 48 N.E. 770, 770-71 (Mass. 1987); Commonwealth v. Peaslee, 59 N.E. 55, 55-56 (Mass. 1901).
84

83

See S UPREME JUDICIAL COURT HISTORICAL S OCY, THE HISTORY OF THE LAW IN M ASSACHUSETTS : THE SUPREME JUDICIAL COURT 1692-1992, at 283 (Russel K. Osgood ed., 1992) [hereinafter HISTORICAL S OCIETY]; see also HOLMES, supra note 4, at 88 ([T]he standards of the law are external standards. . . .).
86 See HOLMES , supra note 4, at 54; see also H.L. P OHLMAN, JUSTICE O LIVER WENDELL HOLMES & UTILITARIAN JURISPRUDENCE 15 (1984) (As Holmes understood it, morality dealt with the actual internal state of the individuals mind; the law dealt with the individuals external acts.). 87 88 89 90 91 92

85

Kennedy , 48 N.E. at, 770 (emphasis added). Id. at 771. See Peaslee, 59 N.E. at 56. See id. Id. Id.

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Peaslee case fell squarely into this second category of incomplete attempts. 93 Lincoln Peaslee placed combustible materials in a building on which he carried insurance, with the intent to set the building on fire. 94 Peaslee offered to pay one of his employees to light the fire, but the employee refused.95 Later, Peaslee drove to within a quarter of a mile of the insured building intending to light the fire himself before changing his mind and driving away.96 Justice Holmes explained that the evidence in Peaslee was insufficient to establish attempted arson because the overt acts taken toward fulfilling the crime did not come close enough to the completed crime to be punishable.97 To establish an attempt, the defendant must be shown to have had a present intent to accomplish the crime without much delay, and to have had this intent at a time and place where he was able to carry it out.98 In other words, it was a question of degree, and Peaslee s acts of preparing the combustibles in the building and later driving toward it were not proximate enough to completion of arson to ultimately support an attempt conviction.99 There is little subsequent case law interpreting the Massachusetts attempt statute.100 The Commonwealth s law of attempt has remained unchanged for more than a century, guided by the interpretations set forth in Kennedy and Peaslee.101 More recently in 2009, the Supreme Judicial Court revisited criminal attempt in Commonwealth v. Bell.102 The Court clarified that while the distance between the defendant s actions and the goal of the completed crime must be relatively short, the law does not specifically require defendants to be physically present at the crime scene to be guilty

See id. at 55-56. Id. ([T]he plan would have required a candle . . . to be placed on a piece of wood in a pan of turpentine and lighted.). 95 Commonwealth v. Peaslee, 59 N.E. 55, 56 (Mass. 1901). 96 Id. 97 Id. at 57. 98 Id. (emphasis added). 99 See id. at 56-57. 100 Commonwealth v. Ortiz, 560 N.E.2d 698, 702 -03 (Mass. 1990) (There is little Massachusetts case law construing and applying this statute.). The case law interpreting the rather broad language of the criminal attempt statute generally makes clear that a finding of criminal attempt requires the following: (1) a specific intent to commit the substantive offense, (2) an overt act toward its commission, and (3) non-achievement of the substantive crime. Commonwealth v. Bell, 917 N.E.2d 740, 746 (Mass. 2009).
94 101 See Bell, 917 N.E.2d at 748 n.14 (Mass. 2009); see also Commonwealth v. Hamel, 752 N.E.2d 808, 815 n.14 (Mass. App. Ct. 2001) (noting that the foundational Kennedy and Peaslee cases have been regularly cited and respected). 102

93

See generally Bell, 917 N.E.2d at 740-45.

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of attempt.103 Instead, the Court explained that it would continue to use the three factors articulated in Kennedy when analyzing questions of proximity: (1) the gravity of the crime, (2) the uncertainty of the result, and (3) the seriousness of any threatened danger.104 A. Proposed Legislative Revisions Several efforts to reform Massachusetts attempt law have been made, but these legislative undertakings have either been limited in scope or ultimately unsuccessful.105 The first such effort was passed in reaction to the Peaslee decision, which reversed the conviction of an attempted arsonist.106 In 1932, the Massachusetts Legislature enacted G.L. c. 266, 5A, making attempted arson a crime independent from the general attempt statute.107 Specifically, the law expressly stated that the commission of any act preliminary to arson or in furtherance of arson constituted attempted arson.108 The Supreme Judicial Court later interpreted this statute as superseding the narrower formulation of attempt articulated in Peaslee for the specific crime of attempted arson.109 Several decades later, in 1968, a study was conducted by the Governor s Committee of Law Enforcement and Administration of Criminal Justice to assess the need and feasibility of a thorough revision of substantive criminal law of Massachusetts. 110 Following this study, the Criminal Law Revision Commission ( Commission ) convened to draft a comprehensive new criminal code for the Commonwealth. 111 As part of this three-year effort, the Commission proposed a change to the states general

See id. at 747 n.9, 747-78. Id. at 747. 105 See infra Part II.A. 106 See M ASS . CRIM. L AW REVISION COMMN, P ROPOSED CRIMINAL CODE OF MASSACHUSETTS ch. 263, prt.6, 45 revision commission note (1972) (explaining that the Peaslee ruling led to the passage of the Massachusetts attempted arson statute); Commonwealth v. Peaslee, 59 N.E. 55, 56-57 (Mass. 1901). 107 See M ASS . G EN. L AWS ch. 266, 5A (2010). In addition to arson, the legislature has criminalized attempts to commit the specific crimes of attempting to escape from a penal institution and attempting to commit murder by poisoning, drowning, or strangulation. Id. at ch. 268, 16 and ch. 265, 16. 108 Id. at ch. 266, 5A. 109 Commonwealth v. Mehales, 188 N.E. 261, 262 -63 (Mass. 1933) (The unmistakable terms of section 5A defining what constitutes an attempt have superseded, with respect to cases coming within their sweep, the narrower conception set forth in Commonwealth v. Peaslee.). 110 Livingston Hall, Drafting a Criminal Code for Massachusetts, 56 M ASS . L.Q., 129, 129 (1971).
104 111

103

See id.

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attempt statute based on the belief that the Peaslee proximity test was too narrow.112 Senator William Bulger filed the proposed criminal code during the 1972 legislative session as Senate Bill No. 200. 113 The proposed formulation for criminal attempt was closer to that of t he Model Penal Code and provided the following: A person is guilty of criminal attempt if, acting with the kind of culpability required for the commission of a crime and with intent to complete the commission of the crime, he engages in conduct, which, in fact, constitutes a substantial step toward its commission.114 The formulation also eliminated the defenses of impossibility and proposed to fix the penalty for attempt at one grade lower than the crime attempted.115 The proposed bill was not passed; instead, a Joint Special Committee was established to further study the proposed criminal code. 116 Efforts to complete the study languished, however, due to an apparent lack of staff and funding.117 The legislature ordered several time extensions to complete the study, but ultimately the study and the proposed bill came to nothing.118 More recently, in 2009, Senator Michael Morrissey filed a petition for legislation to revise the general attempt statute.119 This petition was drafted in response to the Supreme Judicial Court s ruling in Commonwealth v. Bell , which reversed a conviction for the attempted rape of a child. 120 This petition became Senate Bill No. 2479 and proposed the adoption of the Model Penal Code formulation of attempt almost verbatim including its seven specific examples of strongly corroborative conduct and the defense of renunciation.121 The petition was referred to the Joint Committee on the

112 M ASS . CRIM. LAW REVISION COMMN, PROPOSED CRIMINAL CODE OF MASSACHUSETTS ch. 263, pt. 6, 45 revision commission note (19 72). 113 S .B. 200, 167th Leg., 2d S ess. (Mass. 1972). 114 P ROPOSED CRIMINAL CODE OF M ASSACHUSETTS ch.263, prt.6, 45 (emphasis added). 115 Id. at revision commission note. 116 See S . Order 1399, 167th Leg., 2d. S ess. (Mass. 1972). 117 See REPORT OF THE JOINT C OMM . A UTHORIZED TO M AKE AN INVESTIGATION AND S TUDY RELATIVE TO ESTABLISHING THE MASS. CRIM. CODE , H. Order 5301-168, 2d S ess., at 3-4 (Mass. 1974) [hereinafter REPORT OF THE JOINT COMM .].

See H. Order 6379, 168th Leg., 1st. S ess., at 2 (Mass. 1973); REPORT OF THE JOINT COMM ., H. Order 5301- 168, 2d S ess., at 5 (Mass. 1974). 119 H. Journal, 186th Leg., 2d. S ess. 1465 (2010), available at http://www.mass.gov/legis/journal/hj061010.pdf.
120 Press Release, S enator Richard T. Moore, Mass. S tate S enator, S en. Moore Joins Legislators and Norfolk Cnty. Dist. Attorney to Address Definition in Attempted Crimes (Dec. 15, 2009), available at http://www.senatormoore.com/news/archive/2009/12/121509 -1.htm [hereinafter Press Release]. 121

118

Compare S.B. 2479, 186th Legs., 1st S ess. (Mass. 2009), with M ODEL P ENAL CODE , 5.01

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Judiciary, but it was never reported out of that committee for action. 122 B. Application of the Proximity Test in Massachusetts Case Law Several Massachusetts cases, described in detail below, demonstrate that the states current formulation of criminal attempt often produces results that shock the common sense of justice, and signal the need for a change to the law governing attempt liability. 123 In Commonwealth v. Ortiz , brothers Eddie and Juan Ortiz, armed with a loaded .357 Magnum, drove a car to the neighborhood of Jose Rodriguez with whom their family had a longstanding feud. 124 Intending to shoot Rodriguez, the brothers circled the block six times searching for their intended victim.125 Unable to locate Rodriguez, the two brothers left the area.126 The Supreme Judicial Court held that this evidence was sufficient to establish that Juan Ortiz intended and prepared for an assault and battery.127 However, applying the analytical framework of Kennedy and Peaslee, the Court found that the evidence did not establish a sufficiently proximate act for attempt liability.128 The Court reversed the judgment for attempted assault and battery, and explained the decision was in accord with similar formulations of criminal attempt in other jurisdictions (New York and Washington).129 Notably, the Court made it a specific point to recognize that the indictment would have been sustained under the Model Penal Code formulation.130 The opinion explained, to date the Legislature

(1962).
122 COMMONWEALTH OF M ASS ., SENATE B ILL HISTORY, S.B. 2479-186 (Mass. 2009), available at http://www.malegislature.gov/Bills/186/S enate/S 2479 (click on Bill History). 123 See Wechsler et al., supra note 78, at 572-73; Cf. MODEL PENAL CODE AND COMMENTARIES 5 intro., at 294-95 (Official Draft and Revised Comments 1985). Looking beyond just Massachusetts, Dr. Eugene Meehan notes that the proximity tests defects are revealed in numerous cases where serious criminal attempts had been charged, yet the prosecution failed because the fact situations were held to amount merely to states of preparation . D R. EUGENE M EEHAN, THE LAW OF CRIMINAL A TTEMPT A TREATISE 115 (1984).

See Commonwealth v. Ortiz, 560 N.E.2d 698, 699 (Mass. 1990). See id. 126 Id. 127 Id. at 703. On their drive home, the Ortiz brothers were involved in a shootout with police; two police officers were killed in the altercation. Id. at 700. Both Defendant and Eddie Ortiz fled the scene, though Eddie committed suicide before he could be taken into police custody. Id. at 700.
125

124

See id. at 703. Ortiz, 560 N.E.2d at 703-04 (citing People v. Rizzo, 158 N.E. 888, 889-890 (1927) and S tate v. Christensen, 348 P.2d 408, 410 (1960)). 130 Id. at 704 (We are aware that statutes in a few other S tates and the Model Penal Code, 5.01(2) . . . would call for a different result.).
129

128

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in this Commonwealth has not enacted such a statute, and [the Court] therefore follow[ed] the trend of [its] decisions, as few as they may be.131 In Commonwealth v. Hamel , Jerry Hamel, an inmate at Massachusetts Correctional Institution ( M.C.I.) Concord, solicited two undercover police officers posing as hit men to murder Hamel s parents and brother as well as his wifes ex-husband.132 Hamel made an up-front payment for the murders, provided descriptions of the intended victims, and provided sketches of the home where his parents and brother resided. 133 The Massachusetts Appeals Court found that these acts did not come close enough to a physical perpetration of murder.134 Therefore, under Massachusetts law, there was no basis to establish an overt act sufficient for attempt liability.135 In Commonwealth v. Bell , an undercover police officer posing as a prostitute offered her purported five-year-old foster child for sexual services to Kerry Van Bell.136 Bell and the officer met at a particular parking lot at a predetermined time where they negotiated the nature of the transaction and a price of $200.137 The officer then indicated that Bell could follow her to the fictitious child s location at a park nearby.138 As Bell turned out of the parking lot in the direction of the park, officers arrested him with $211 in cash on his person.139 The Supreme Judicial Court explained that the facts of Bell placed the case in the second class of cases identified by Justice Holmes in Peaslee.140 The acts in this class of incomplete attempts fall short of a last act and are still in the preparation stage.141 In a 5-2 decision, the Court held that even though Bell intended and prepared for the rape of a child, he was not near enough to the actual commission of the crime to be found guilty of attempt.142 Since Bell was still a mile away from a vague location and had not paid any money to the undercover officer, there was still an opportunity for him to withdraw.143 In what appeared to be another appeal

131 132

Id. Commonwealth v. Hamel, 752 N.E.2d 808, 810 -13 (Mass. App. Ct. 2001). 133 Id. at 813. 134 Id. 135 Id. at 815-16. 136 Commonwealth v. Bell, 917 N.E.2d 740, 744 -45 (Mass. 2009). 137 Id. 138 See id. at 745. 139 Id. at 745, 761. 140 Id. at 747; see also Commonwealth v. Peaslee, 59 N.E. 55, 56 (Mass. 1901) . 141 Id. 142 Commonwealth v. Bell, 917 N.E.2d 740, 748 -49 (Mass. 2009). 143 Id. at 749 ([T]here [was] no evidence that he had formulated a plan as to exactly where,

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for legislative reform, the Supreme Judicial Court expressly noted that many states have adopted the Model Penal Code s less stringent standard of attempt and that this formulation generally makes convictions easier to reach.144 The Court added that the creation of crimes is not for the [Court] to determine and [a]ny reformulation of the statutory crime of attempt is a matter for the legislature.145 In Commonwealth v. Pitts, an unpublished and nonprecedential decision, the Massachusetts Appellate Court held that Dennis Pitts s arrival at a predetermined location at an agreed-upon time to meet a fictitious juvenile female was sufficient to show that Pitts intended and prepared for the rape of a child.146 Bound by the reasoning in Bell , however, the court held that the evidence failed to establish that Pitts undertook an overt act that put him near enough, in time or ability, to the completion of the crime to be guilty of attempt.147 At the close of 2012, the appeals court was confronted with a factual situation very similar to Bell and Pitts in Commonwealth v. Buswell .148 In a surprising opinion, the court changed course and upheld Buswell s attempted rape and attempted indecent assault and battery convictions by distinguishing the facts from the Bell case.149 The court explained that unlike Bell, (1) Buswell knew exactly where and when he would commit the crime, (2) he had formulated a concrete plan, (3) there was no intermediary between Buswell and his contemplated victim, and (4) there was no fee required to be paid in advance of sex.150 In a holding that appears destined for appeal, the court found that with these distinguishing factors, Buswell undertook an overt act that put him so near in time or ability to the completion of the crime

or when, he would commit the crime.). Id. at 747. Id. at 747-48 (citation omitted) (internal quotation marks omitted). 146 Commonwealth v. Pitts, No. 08-P-1596, 2010 WL 841292, at *1-2 (Mass. App. Ct. Mar. 12, 2010). Pitts arranged, over the internet, to meet an undercover police officer posing as a thirteen-year-old girl. Brief for the Commonwealth at *4-10, Commonwealth v. Pitts, No. 08-P1596, 2010 WL 841292 (Mass. App. Ct. Mar. 12, 2010). They agreed to meet at a Dunkin Donuts where Pitts was arrested with a box of Trojan condoms in his jacket. Id. at *13-15.
145 144

Pitts, 2010 WL 841292, at *1-2. Commonwealth v. Buswell, 970 N.E.2d 768 (Mass. App. Ct. 2012); see also supra notes 137-148 and accompanying text. Michael Buswell arranged to meet an officer pos ing as a thirteen year old in an internet chat room for sex. Id. at 771. The two agreed to meet at a parking lot before proceeding to the fictitious childs apartment. Id. at 772. Buswell was arrested when he arrived at the agreed-upon parking lot, where a condom and directions to the fictitious childs apartment were found in his truck. Id.
148 149 150

147

Id. at 774-75. Id. at 774.

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as to be guilty of attempt.151 Perhaps the strangest twist in this case was that the court s ruling ran contrary to a concession by the Commonwealth that Buswell s attempt convictions should be reversed based on the Commonwealth v. Bell holding.152 The Massachusetts formulation for attempt is best described in the words of Justice Gants of the Massachusetts Supreme Judicial Court as confused, complicated and controversial.153 This formulation has produced several holdings that are in harmony with the black letter law, but in discord with sound public policy and a sense of justice. 154 The 2012 Buswell case demonstrates the obvious confusion in the legal community, 155 and reveals a court straining within the narrow confines of the current law in order to reach a sensible result.156 In short, the Massachusetts test for attempt is flawed, and a legislative change is in order. 157

ANALYSIS
III. The Massachusetts Formulation of Attempt Lacks Clarity, Is Narrowly Focused, and Handicaps Law Enforcement. A. The Massachusetts Formulation Lacks Clarity. Tests that require acts to be proximate to the crime attempted, like the Massachusetts formulation, do not provide a sufficiently concrete standard for identifying attempts.158 Scholars have described proximity tests as vague, nebulous and . . . unintelligible to a jury.159 Moreover, the inherent uncertainty in the Massachusetts proximity test is contrary to the view that the law should possess preannounced standards of acceptable and non-acceptable behavior so that citizens can predict whether anticipated conduct is illegal.160 In Peaslee, Justice Holmes explained that preparation generally was not

Id. at 773 (quoting Commonwealth v. Bell, 917 N.E.2d 740, 749 (Mass. 2009)). Id. at 772-74 ([W]e reject . . . the Commonwealths concession.). 153 Bell, 917 N.E.2d at 755 (Gants, J., dissenting). 154 See generally supra Part II.B; infra Part III.A-B. 155 See Buswell, WL 61117851, at *3, *5 n.4 (Mass. App. Ct. Dec. 12, 2012) (asserting that the Commonwealths concession springs from a misunderstanding of Bell).
152

151

See generally id. (expounding upon the factors that distinguish Buswell from Bell). See generally infra Parts III, IV. 158 D UFF, supra note 1, at 33. 159 M EEHAN, supra note 123, at 93. 160 Id. at 117. One of the core purposes governing the definition of offenses in the Model Penal Code is to give fair warning of the nature of the conduct declared to constitute an offense. M ODEL P ENAL CODE 1.02(1)(d) (1962).
157

156

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attempt, but some preparations could amount to attempt if sufficiently proximate to the intended crime.161 The current Massachusetts Supplemental Jury Instruction for attempt provides the following: [p]reliminary preparations to commit a crime are not enough [to establish an overt act].162 Therefore, Massachusetts juries may be asked to divine where a sufficient overt act materializes along a continuum consisting of (1) preliminary preparations, where no liability attaches ; (2) preparations, where liability may or may not attach depending upon vague notions of proximity; and (3) an attempt.163 Thus, the already difficult task of delineating when mere preparation . . . transform[s] itself into an act of actual endeavor is further complicated by adding another nebulous boundary between preliminary preparation (preparing to prepare) and preparation.164 Although the Massachusetts Supreme Judicial Court has expressed that it does not specifically require defendants to be physically present at the crime scene to be guilty of attempt, 165 the proximity test remains inescapably related to physical proximity to the completed offense. 166 The requirement that the defendant have the criminal intent at a time and place where he [or she is] able to carry it out demands this conclusion.167 Certainly, one is hard-pressed to identify the extraordinary situation where a defendant can be at a time and place where he or she is able to carry out a crime without being physically present at the scene. 168 Another area of ambiguity is the Court s consideration of the gravity of the offense and the seriousness of the danger in determining the requisite proximity for an attempt.169 The specific phrase dangerous proximity is

Commonwealth v. Peaslee, 59 N.E. 55, 56 (Mass. 1901). M ASSACHUSETTS COURT S YSTEM , CRIMINAL M ODEL JURY INSTRUCTIONS : INSTRUCTION 4.120 A TTEMPT (rev. ed. 2009), available at http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/jury instructions/criminal/pdf/4120-attempt.pdf [hereinafter JURY INSTRUCTION]; see Commonwealth v. Bell, 917 N.E.2d 740, 762 n.12 (Mass. 2009) (Gants, J., dissenting) ("[T]he judge's instruction regarding attempt followed in substantial part Instruction 5.02 [re numbered 4.120] and its supplemental instruction in the Model Jury Instructions for Use in the District Court."); Commonwealth v. Hamel, 752 N.E.2d 808, 815 (Mass. App. Ct. 2001) (The [jury] instructions are in accord with the authority in the Commonwealth on the dangerous-proximity proposition.).
162 163 164 165 166 167 168 169

161

See generally Peaslee, 59 N.E. at 56; JURY INSTRUCTION, supra note 162. Arthur Allen Leff, The Leff Dictionary of Law: A Fragment, 94 YALE L.J. 1855, 2093 (1985). Bell, 917 N.E.2d at 747 n.9 (majority opinion). See M EEHAN, supra note 123, at 96. Commonwealth v. Peaslee, 59 N.E. at 57 (emphasis added). Bell, 917 N.E.2d at 758 n.6 (Gants, J., dissenting). See, e.g., Bell, 917 N.E.2d at 747 (majority opinion) (noting that the determination of

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traced to Justice Holmes s dissent in Hyde v. United States where he explained that there must be a dangerous proximity to success to establish the overt act necessary for attempt liability. 170 It has been suggested that Justice Holmes s dissent in Hyde was intended to clarify his earlier Massachusetts opinions on the subject.171 In addition, commentators and scholars commonly refer to the Massachusetts formulation as a dangerous proximity test.172 The Massachusetts Supreme Judicial Court in Bell , however, made it a point to note that the Court has never used the phrases dangerous proximity or dangerously close when analyzing attempt crimes.173 Nevertheless, the Court maintained that the gravity of the crime and the seriousness of any threatened danger are an integral part of the proximity calculus.174 In theory at least, this indicates a fluctuating line of proximity, based on at least some vague notion of dangerousness (label notwithstanding), varying according to the facts and circumstances of each case.175 It is unclear, however, just how serious the crime or how troubling the facts must be to shift this line along the continuum between first and last acts.176 What is clear is that neither the seriousness of attempted rape in Bell and Pitts nor the gravity of attempted murder in Hamel meaningfully affected the proximity requirement.177 The fact that the police were conducting undercover sting operations in these cases plainly diluted the weighting of the seriousness of the threatened danger.178 However, the seriousness of the danger associated with the attempted assault and battery in Ortiz, where an actual victim did exist, also did not appear to shift the line of proximity.179 In fact, the Ortiz opinion mentioned only in passing that proximity may vary based on the apprehension which the particular

gravity of the offense and the seriousness of danger are necessary in an attempt analysis); Commonwealth v. Kennedy, 48 N.E. 770, 771 (Mass. 1897). Hyde v. United S tates, 225 U.S . 347, 387-88 (1912) (Holmes, J., dissenting). See Braham v. Alaska, 571 P.2d 631, 654 (Alaska 1977) (Connor, J., dissenting). 172 See, e.g. , D RESSLER, supra note 23, at 399; D UFF, supra note 1, at 46-47; M EEHAN, supra note 123, at 112; Levenbook, supra note 2, at 44. 173 Bell, 917 N.E.2d at 748 n.13. 174 Id. at 747 & n.9, 749 n.16. 175 M EEHAN, supra note 123, at 117; see Commonwealth v. Peaslee, 59 N.E. 55, 56 (Mass. 1901) ([T]he degree of proximity held sufficient may vary with circumstances.).
171 170

M EEHAN, supra note 123, at 117. See generally D UFF, supra note 1, at 34-42. See Bell, 917 N.E.2d at 749; Commonwealth v. Hamel, 752 N.E.2d 808, 814 -16 (Mass. 2001); Commonwealth v. Pitts, No. 08-P-1596, 2010 WL 841292, at *1-2 (Mass. App. Ct. Mar. 12, 2010). 178 See Bell, 917 N.E.2d at 747 n.9 (noting that when police are orchestrating the scene the defendant must come very close to the location of the intended victim).
177 179

176

See Commonwealth v. Ortiz, 560 N.E.2d 698, 702-03 (Mass. 1990).

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crime is calculated to excite.180 The court did not explain, however, if or how this consideration factored into the Ortiz decision.181 Thus, the significance of the gravity of the crime and the seriousness of the threatened danger are relatively insubstantial in the court s analysis.182 At a minimum, it is not clear from the opinions how these factors are taken into account.183 Instead, the court s proximity determinations turn largely on spatial and temporal elements a narrow basis for establishing attempt liability.184 B. The Massachusetts Formulation of Attempt Focuses Too Narrowly on Proximate Acts and Does Not Properly Serve the Goals of Penal Law. An important principal of criminal law is that a morally blameworthy violation of social standards is justification for punishment. 185 As illustrated in Part II.B, however, decisions by the Massachusetts courts demonstrate that the current formulation of attempt produces results that are inconsistent with this principle.186 This is due in part to the fact that the Massachusetts test narrowly evaluates conduct in terms of proximity , which isolates individual acts from the larger social situation. 187 However, attempts should be evaluated in the context of the total social situation to properly evaluate moral blameworthiness: Any valid judgment on the issue, criminal attempt or mere preparation, must take into consideration not only the defendant s act , but also the surrounding conditions, and beyond that, various preceding circumstances, the relation of the parties, and all other matters allowing reconstruction of the total social situation.188 In cases that fall into the second category of attempt identified by

Id. at 703. See id. (reciting the attempt formulation articulated in Kennedy and Peaslee without offering an explanation as to how the relevant factors applied to the specific facts of the Ortiz case).
181

180

See supra Part III.A. See supra Part III.A. 184 See Commonwealth v. Bell, 917 N.E.2d 740, 755, 759 -61 (Mass. 2009) (Gants, J., dissenting) (asserting that the Court has effectively developed a s tandard that requires physical presence to establish attempt liability).
183

182

HISTORICAL S OCIETY, supra note 85, at 286. See supra Part III.B. 187 See HISTORICAL S OCIETY, supra note 85, at 286-87 (asserting that the Massachusetts test is flawed because it deliberately diverts attention away from the kind of moral evaluation that would help decide whether the defendants conduct is morally equivalent to a completed crime).
186 188

185

Hall, supra note 4, at 825.

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Justice Holmes in Peaslee (short of the last act or in the preparations stage), convictions are exceptionally difficult to achieve in the Commonwealth. 189 This is because the Massachusetts test consistently fails to recognize the culpability of intending criminals who do not achieve spatial and temporal proximity.190 This narrow approach immunizes physically remote acts from liability while disregarding the demonstrated dangerousness of the actor under the totality of the circumstances. 191 Hence, in Ortiz, the court held there was no liability for attempted assault and battery because the Ortiz brothers never reached a time and place where they were able to physically carry out the crime.192 In other words, Ortiz escaped liability simply because he could not find his victim and achieve the necessary proximity.193 But this view disregards the additional facts: the Ortiz brothers loaded a .357 Magnum, grabbed extra a mmunition, and drove to Mr. Rodriguez s neighborhood with the intent of shooting him. 194 These additional facts, taken as a whole, indicate that Ortiz was both . . .willing[] to commit a harmful act, and that he ha[d] the potential to commit real harm, had the world turned according to his perceptions. 195 Ortiz s behavioral pattern was no different than a wrongdoer who completes the crime simply because he or she was able to successfully locate the victim. 196 Thus, in Massachusetts, attempt liability turns on chance, i.e., the fortuity of circumstance.197 In Bell , the Court focused on the fact that Kerry Van Bell never reached the exact location where his intended victim was presumably located. 198
Commonwealth v. Bell, 917 N.E.2d 740, 755 (Mass. 2009) (Gants, J., dissenting). See supra Part II.B. 191 See M ODEL P ENAL C ODE AND COMMENTARIES 5.01 cmt. 5(a)-(b), at 321-23 (Offic ial Draft and Revised Comments 1985). 192 See Commonwealth v. Ortiz, 560 N.E.2d 698, 703 (Mass. 1990). 193 See id. at 699-700, 702-03 (explaining that the defendant and his brother were unable to locate their intended victim and did not ac hieve the requisite proximity for an overt act).
190 189

Id. at 699-700. S arah A. Christie, The Relevance of Harm as the Criterion for Punishment of Impossible Attempts, 73 J. CRIM L. 153, 159 (2009) (alternation to the original); see also M ODEL P ENAL CODE AND COMMENTARIES 5.01 cmt. 6(b)(i), at 334 (Offic ial Draft and Revised Comments 1985) ([A]cts of . . . searching . . . with criminal purpose manifest . . . sufficient dangerousness to provide a proper basis for imposing liability.).
195

194

See Why Do Criminal Attempts Fail? A New Defense, 70 YALE L.J. 160, 164 (1960) (explaining that in this class of attempts the behavior pattern of the attempter has been no different than that of the completer).
197 But cf. Gobert, supra note 13, at 21, 44-45 (asserting that fortuitous circumstances should not relieve a person from liability when his or her acts "signify moral blameworthiness, dangerousness, and need of restraint and rehabilitation"). 198 See Commonwealth v. Bell, 917 N.E.2d 740, 748, 749 (Mass. 2009) (noting that Bell was more than a mile from the park); accord Robinson, supra note 54, at 622-23 (explaining that

196

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But the legally criminal situation is broader than that. 199 Bell also identified a supplier for a child, negotiated the price and sex acts, and was en route to the nearby park where he believed the child was waiting. 200 Logically all these steps taken together, under the totality of the circumstances, indicated that Bell substantially developed a criminal purpose, and crossed the Rubicon from preparation to attempt. 201 Nevertheless, the totality of Bells conduct and the accompanying manifestations of dangerousness fell outside the narrow scope of the Massachusetts proximity test .202 Indeed, the test isolated Bell s individual acts to the point where the character of the broader social situation was no longer visible. 203 As a consequence, the Massachusetts formulation failed to neutralize an individual who had otherwise violated social standards,204 upset social stability,205 and demonstrated that he was a danger to the general public. 206 C. The Massachusetts Formulation of Attempt Handicaps Law Enforcement. One of the functions of attempt law is to provide law enforcement a legal basis and assurance on which to take preventive action before too close an approach is made to the completed crime. 207 The Massachusetts proximity test inhibits this function by restricting attempt, and the opportunity for police intervention, within a narrow band of activity immediately preceding the target crime.208
proximity tests focus on how close the actor has come to completion of the crime).
199 See Hall, supra note 4 , at 826 ([T]he legally criminal situation is also a social situation.). 200 Bell, 917 N.E.2d at 748. 201 See Hall, supra note 4 , at 826 ([A]ct, instrumentality and consequences provide a situation that, together with relevant knowledge of prior circumstances and conditions, forms the subject-matter of analysis.).

See Bell, 917 N.E.2d at 744-50. See Hall, supra note 4, at 814-16, 826 ([A]n anti-social situation regardless of how it may be distinguished sociologically from ultimate harmful consequences is, of course, independently criminal, legally.).
203 204 See HISTORICAL S OCIETY, supra note 85, at 286-87 ([If] the purpose of the criminal law is to punish morally blameworthy violations of community standards, one could conclude that the test of attempt should not be proximity to harm . . . .). 205 See Lawrence C. Becker, Criminal Attempt and the Theory of the Law of Crimes , 3 P HIL . & P UB . A FF. 262, 275-76 (1974) (explaining that attempts produce a breakdown in the assurance of social stability). 206 See M ODEL P ENAL C ODE AND COMMENTARIES 5.01 cmt. 5(b), at 323 (The primary purpose of punishing attempts is to neutralize dangerous individuals and not to deter dangerous acts .). 207 208

202

M EEHAN, supra note 123, at 96. See id.

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Massachusetts courts have recognized the legitimacy of undercover sting operations as an important investigative technique, particularly in the investigation of child sex crimes.209 Yet the attempted rape cases of Bell and Pitts demonstrate just how difficult it is to secure a conviction under the proximity test where a factual impossibility is present, e.g., police sting operations where no actual victim exists. 210 Consequently, the proximity test is incompatible with the rule that factual impossibility is not a defense to attempt.211 This is not logical, however, because regardless of whether an actual victim exists, the defendant s conduct, intent, and culpability are the same.212 Thus, liability should properly turn on the facts as the defendant believed them to be.213 In Bell , the Court noted that in cases where the police [are] orchestrating the scene, the defendant would need to be very close to the location of the hypothetical child to be guilty of attempt. 214 In cases like Bell where no actual victim exists, however, the defendant can never actually reach a time and place where completing the crime is possible. 215 This fundamental ambiguity presents police with a dilemma in deciding precisely when to act, facing the risk that there may not be a valid attempt charge if they intervene too soon.216 And in cases where an actual, potential child victim [does] exist, asking law enforcement to endanger the psychological health of [a] child by permitting [a] defendant to reach [a time and] place where the defendant could commit the sexual crime against the child is plainly unreasonable.217 In short, the Massachusetts formulation of attempt ties the hands of law enforcement in the field by dangerously prolonging218 sting operations and leaving officers to make

209 Commonwealth v. Bell, 853 N.E.2d 563, 564-65, 565 n.3 (Mass. App. Ct. 2006); see also Commonwealth v. Garcia, 659 N.E.2d 741, 744 (Mass. 1996). 210 See supra Part II.B. But see Commonwealth v. Buswell, 979 N.E.2d 768, 771 -75 (Mass. App. Ct. 2012) (finding attempt liability in an undercover sting operation scenario).

See LAFAVE , supra note 22, at 625-26. But cf. Commonwealth v. Disler, 884 N.E.2d 500, 507 (Mass. 2008) ([F]actual impossibility is not a defense to a crime.); Commonwealth v. Hamel, 752 N.E.2d 808, 816 (Mass. App. Ct. 2001) (explaining that even though completion of the substantive offense was impossible it did not provide a defense to criminal attempt). Bell, 917 N.E.2d at 760 n.9 (Gants, J., dissenting). M ODEL P ENAL CODE 5.01(1) (1962). 214 Bell, 917 N.E.2d at 747 n.9 (majority opinion) (emphasis added). 215 Id. at 760; see also M EEHAN, supra note 123 , at 116 (noting that a person who attempts an impossible crime can never be in dangerous proximity to success); LAFAVE, supra note 22, at 625-26 (The proximity test has been questioned on the ground that it is inconsistent with the rule that impossibility of success is not necessarily a defense.).
213 216 217 218 212

211

See Bell, 917 N.E.2d at 760 (Gants, J., dissenting). Id. See id. at 760 n.9 ([C]riminal liability for an attempt [w]ould attach at a later stage

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difficult determinations about the point at which they may properly intervene or make an arrest.219 IV. Massachusetts Should Adopt the Model Penal Code Formulation for Attempt. The various approaches for analyzing the act element for an attempt have their own advantages and disadvantages in theory and in application.220 However, the Model Penal Codes substantial step test stands apart from other tests as a clearer, sounder, more practical, and easier [method] to apply to the multitude of differing fact situations which may occur.221 Therefore, the Massachusetts legislature should adopt the Model Penal Code formulation for attempt that was submitted for consideration in 2009 as Senate Bill No. 2479. 222 A. The Model Penal Code Provides a [R]ational and [L]ogically [S]ound [D]efinition 223 of Attempt. In the words of the United States Supreme Court: To attempt to do an act does not . . . imply a completion of the act, or any definite progress towards it.224 Any effort or endeavor to effect [the act] will satisfy the terms of the law.225 Stated more directly, the essence of attempt is in the criminal purpose evidenced by overt acts and not in the acts themselves. 226 The Model Penal Codes substantial step embraces this principle by evaluating acts as expressions of criminal intent. 227 The conduct must advance the criminal purpose charged and provide some evidence of that purpose.228 This approach effectively moves the boundary between preparation and attempt further away from the final act required to complete the crime.229

where police have sustained the fiction of a potential victim than where a real victim is at risk, despite the fact that the defendants conduct and intent is identical in the two cases.). D RESSLER, supra note 23, at 400. Young v. S tate, 493 A.2d 352, 358 (Md. 1985). 221 Id. 222 See supra Part II.A. 223 United S tates v. S tallworth, 543 F.2d 1038, 1040 (2d Cir. 1976). 224 United S tates v. Quincy, 31 U.S . 445, 465 (1832). 225 Id. 226 See United S tates v. Jackson, 435 F.S upp. 434, 438 (E.D. N.Y. 1976). 227 YAFFE , supra note 2, at 257. 228 See M ODEL P ENAL C ODE AND COMMENTARIES 5.01 cmt. 6, at 331(Offic ial Draft and Revised Comments 1985). 229 M EEHAN, supra note 123, at 130-31 (quoting M ODEL P ENAL CODE 5.01 (Tentative Draft no. 10, 1960)).
220 219

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The difficult question of defining precisely where an actor crosses the Rubicon from preparation to criminal attempt is by no means solved by the Model Penal Codes substantial step test.230 Quite the contrary, the Model Penal Code dispenses with any effort to mechanically distinguish between preparation and attempt.231 This is because [a]ttempters are not necessarily more dangerous than preparers, nor do they always do immanently or imminently dangerous acts. 232 Accordingly, the substantial step test does not rigidly focus on the proximity of acts relat ive to the completion of the substantive crime.233 Instead, the test calls for a broader evaluation of the significance of what that actor has already done and whether those actions corroborate a criminal intent. 234 This is a factintensive inquiry, evaluated under the totality of the circumstances in each case.235 One of the major criticisms of the Model Penal Code approach, with its emphasis on mens rea and de-emphasis on conduct, [is that it] endangers civil liberties, and too easily results in conviction of innocent persons. 236 Moreover, critics express a fear that a subjectivist focus may result in punishment for bad thoughts alone. 237 These Orwellian concerns are misplaced, however, because the American Law Institute ( ALI) crafted the substantial step test with those very concerns in mind. 238 The Model Penal Code is not purely subjective; criminal liability does not attach by intent (bad thoughts) alone.239 A purposeful act is an additional condition

230 See Mims v. United S tates, 375 F.2d 135, 148 (5th C ir. 1967) (Much ink has been spilt in an attempt to arrive at a satisfac tory standard for telling where preparations ends [sic] and attempt begins.); United S tates v. Coplon, 185 F.2d 629, 633 (2d Cir. 1950) (The decisions are too numerous to cite, and would not help much anyway, for there is, and obviously can be, no definite line [between preparation and attempt].). 231 M ODEL PENAL CODE AND C OMMENTARIES 5.01 cmt. 1, at 298; Wechsler et al., supra note 78, at 574, 612.

Levenbook, supra note 2, at 51. See M ODEL P ENAL CODES AND COMMENTARIES , 5.01 cmt. 6(a), at 329. 234 See id. 235 See S tate v. Davis, 354 S .W.3d 718, 733 (Tenn. 2011). 236 D RESSLER, supra note 23, at 397; see YAFFE , supra note 2, at 30 (stating that the Model Penal Code approach is viewed by some as a violation of the presumption of innocence).
233

232

D RESSLER, supra note 23, at 397; see Paul H. Robinson, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. REV . 266, 266 (1975). 238 See M ODEL PENAL CODE AND COMMENTARIES 5.01 cmt. 1, at 298-99 (Needless to say, the law must be concerned with conduct, not with evil thoughts alone. . . . [T]he judgment is that conduct that does not itself strongly corroborate the actors criminal objective should be excluded from liability.). 239 See M ODEL PENAL CODE 5.01(1)(c) (1962) (requiring an act or omission constituting a substantial step).

237

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for liability, and not any act will suffice. 240 The act must be substantial , and it must demonstrate firmness of criminal purpose. 241 In addition, the Model Penal Code provides for an affirmative defense to attempt if the actor manifests a complete and voluntary renunciation of his or her criminal purpose.242 Therefore, the actor retains a locus poenitentiaethe opportunity to change his or her mind and abandon the criminal purpose. 243 In moving to the Model Penal Code formulation for attempt, the Commonwealth of Massachusetts will join half the states and most of the federal courts in adopting the substantial step test. 244 Consequently, Massachusetts courts will have the ability to draw upon a large and welldeveloped body of case law for persuasive guidance. 245 As noted previously, the Model Penal Code also provides specific descriptions of recurring situations that constitute a substantial step. 246 These specific enumerations would provide further well-defined guidance to Massachusetts judges and juries in evaluating attempt liability. 247 Indeed, a jury verdict of guilty generally cannot be set aside if it falls into one of the specific situations that constitute a substantial step identified in the Model Penal Code.248 Thus, the Model Penal Codes substantial step test provides the fact-finder with a much more specific and predictable basis for determining criminality . . . [and relieves] the fact-finder (as well as the court evaluating the sufficiency of evidence) [from] the ta sk of resolving the policy choices inherent in deciding when acts of preparation have

See id. Id. at 5.01(2) (requiring conduct that is strongly corroborative of criminal purpose). 242 Id. at 5.01(4). 243 See M ODEL PENAL CODE AND COMMENTARIES 5.01 cmt. 8, at 356-57 (explaining that the defense of renunciation allows for repentance or change of heart based on [a] reappraisal by the actor).
241

240

D RESSLER, supra note 23, at 413 & n.190. Compare United S tates v. Hsu, 155 F.3d 189, 202 n.19 (3d Cir. 1998) (We adopt the Model Penal Code (MPC) test for attempt because it is consistent with our own caselaw and with the great weight of modern precedent.) (emphasis added), with Commonwealth v. Ortiz, 560 N.E.2d 698, 704 (Mass. 1990) (noting that to date, the Legislature has not enacted the Model Penal Code formulation of attempt and therefore the Court follow[ed] the trend of [its] decisions, as few as they may be) (emphasis added). See also Ming Lam S ui v. INS , 250 F.3d 105, 116 (2d Cir. 2001) ([T]he modern meaning of attempt has evolved from the classic common-law definition of the term, and the elements of intent and a substantial step toward commission set out in the Model Penal Code make up the most commonly used attempt definition today.).
245

244

M ODEL P ENAL CODE 5.01(2) (1962). See M ODEL PENAL CODE AND COMMENTARIES 5.01 cmt. 6(b), at 332 (providing specific enumerations of c rimes constituting a substantial step should reduce the contrariety of decision in a number of recurring situations).
247 248

246

Wechsler et al., supra note 78, at 611.

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become criminal.249

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B. The Model Penal Code Properly Focuses on Neutralizing Dangerous Individuals. Individuals who have chosen to embark upon a criminal enterprise . . . have demonstrated the inability of their internal mechanisms of self-control to restrain them from criminal conduct. 250 The Model Penal Code approach provides a legal basis for dealing with these dangerous individuals whose conduct indicates that they are disposed toward criminal activity not only in this instance but also in the future. 251 As a case in point, Kerry Van Bell, the defendant in Commonwealth v. Bell , had previously been convicted of attempted sexual assault of a minor in 1989 in the State of Nevada.252 An individual who has taken substantial steps toward committing the crime of rape of a child has established he or she is dangerous even though he or she has not reached a time and place where the rape could be accomplished.253 Jurisdictions whose legislatures have adopted the Model Penal Code definition of attempt, or a variant thereof, have generally concluded that an agreement to meet a fictitious minor at a designated place and time, coupled with traveling to that location, constitute evidence of a substantial step.254 Thus, the Massachusetts attempted rape cases of Bell and Pitts almost certainly, and justly, would have resulted in convictions under the Model Penal Code.255
People v. Lehnert, 163 P.3d 1111, 1115 (Colo. 2007) (en banc). Daniel G. Moriarty, Extending the Defense of Renunciation, 62 TEMP. L. REV . 1, 5 (1989). 251 M ODEL PENAL CODE AND C OMMENTARIES 5 intro., at 294; see Wechsler et al., supra note 78, at 572; s ee also YAFFE , supra note 2, at 27, 29 (explaining that the Model Penal Code approach views an attempt as evidence of dangerousness, and that there will likely be a completed crime in the future or perhaps there was one that went undetected at an earlier time). 252 Van Bell v. S tate, 775 P.2d 1273, 1274-75 (Nev. 1989) (holding that Bell committed attempted sexual assault when he purchased lubricant and drove toward the apartment in which he believed a fictitio us female child was waiting).
250 253 See S tate v. S orabella, 891 A.2d 897, 915 (Conn. 2006) (explaining that even though the defendant did not reach a location intended to be the place contemplated for committing the crime, he still had taken a substantial step toward its commission). 254 See, e.g. , United S tates v. Farner, 251 F.3d 510, 511, 513 (5th Cir. 2001) (arranging and traveling to meet a fictitious minor constituted a substantial step toward committing crime); Kirwan v. S tate, 96 S .W.3d 724, 725-26, 731 (Ark. 2003) (arranging to meet fictitious minor for sexual relations and traveling to specified place at specified time constituted substantial step); S tate v. Tarbay, 810 N.E.2d 979, 980, 984-85 (Ohio App. 2004) (arranging to meet a fifteen-yearold to engage in sexual relations and traveling to meeting place constitutes a substantial step). 255 See generally Commonwealth v. Bell, 917 N.E.2d 740, 747 (Mass. 2009) (noting that the Model Penal Code makes convictions easier to reach). 249

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Model Penal Code jurisdictions have held that solicitation of a third party to commit murder manifests a dangerous disposition and may constitute a substantial step toward attempted murder. 256 Thus, the solicitation, furnishing of information, partial payment, and description of victims to undercover officers, found insufficient in Commonwealth v. Hamel , would likely be sufficient to support an attempt conviction under the Model Penal Code.257 A conviction on facts very similar to Hamel was reached in Howell v. State.258 In Howell , the defendant agreed to hire a person he believed to be an assassin-for-hire, but who was actually a police officer, to murder his wife.259 The defendant supplied the supposed assassin with a photograph and physical description of his wife, the license number and description of her car, and a map of her neighborhood and residence.260 In addition, the defendant paid $500 in cash to the supposed assassin as a down payment for the murder. 261 The Georgia Court of Appeals held that the evidence was sufficient to support a finding of attempted murder under the substantial step test.262 More specifically, the steps the defendant took demonstrated that he was a dangerous person and indicated a firmness of criminal purpose.263 The Massachusetts proximity test reflects a utilitarian rationale for criminal punishment as it primarily focuses on deterrence of undesirable conduct.264 But deterrence should play only a minor role in the law of attempt.265 This is [b]ecause the actor, by making an attempt, has already
256 See, e.g. , S aienni v. S tate, 346 A.2d 152, 154 (Del. 1975) (finding that making contract to kill, providing detailed instructions and descriptions, and buying insurance was a substantial step); S tate v. Manchester, 331 N.W.2d 776, 780 (Neb. 1983) (affirming that acts of soliciting a killer, discussing a contract price, and providing details regarding the victim constituted a substantial step); S tate v. Kilgus, 519 A.2d 231, 236 (N.H. 1986) (S olicitation of another to commit murder may constitute an attempt to commit murder when . . . the defendant has completed all the necessary preliminary steps for the hired murder to take place.) .

See Commonwealth v. Hamel, 752 N.E.2d 808, 816 n.15 (Mass. App. Ct. 2001). Howell v. S tate, 278 S .E.2d 43, 45-46, 49 (Ga. 1981). 259 Id. at 45-46. 260 Id. 261 Id. at 46. 262 See id. at 47-48. 263 See id. at 46-47. 264 See Mark E. Roszkowski & Ralph Brubaker, Attempted Monopolization: Reuniting a Doctrine Divorced from Its Criminal Law Roots and the Policy of the Sherman Act, 73 M ARQ. L. REV. 355, 385 (1990); Herbert Hovenkamp, The Marginalist Revolution in Legal Thought, 46 V AND. L. REV . 305, 336 (1993) (Although the underlying framework of Holmess legal theory was Pragmatic and Darwinian, its c ontent was utilitarian and marginalist and was concerned mainly with deterrence.). 265 Roszkowski, supra note 264, at 381; M ODEL PENAL CODE AND C OMMENTARIES 5 intro., at 294 (Offic ial Draft and Revised Comments 1985).
258

257

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demonstrated an intent to commit the substantive offense despite the threat of its sanctions, the threat of sanctions for the attempt is not likely to further deter the actor.266 Therefore, attempt law should more properly focus on a retributive rationale for criminal punishment. 267 Under this view, the focus is the actor s demonstrated propensity for dangerousness; on the present occasion, and in the future. 268 The Model Penal Codes attention to the actor s manifestation of dangerousness as the basis for punishment properly serves that focus.269 C. The Model Penal Code Formulation Enables Timely Intervention and Appropriately Supports Law Enforcement. The Model Penal Code formulation tends to expand the reach of criminal attempt and generally makes convictions easier to achieve. 270 As a result of broadening attempt liability, the Model Penal Code was early intervention by law enforcement to apprehend dangerous people and prevent crimes.271 Application of the substantial step test in United States v. Stallworth illustrates the importance of enabling early police intervention when a suspect has clearly set out upon the commission of a crime. 272 In Stallworth , Rodney Campbell agreed to work with the Federal Bureau of Investigation ( FBI) to assist in apprehending some of his former accomplices in return for a grant of immunity. 273 Campbell and three accomplices crafted a plan to rob the First National Bank in Whitestone, Queens and supplied with ski masks surgical gloves and guns drove to the target bank.274 Once parked in front of the bank, which was located in a small shopping center, Campbell said, let s go, and the other men.275 At this point, FBI agents and New York City police officers apprehended the

Roszkowski, supra note 264, at 381; M ODEL PENAL CODE AND COMMENTARIES 5 intro., at 293.
267 Roszkowski, supra note 264, at 381-82; M ODEL P ENAL CODE AND COMMENTARIES 5.01 cmt. 1, at 298. 268 Roszkowski, supra note 264, at 381-82; See M ODE PENAL CODE AND COMMENTARIES 5 intro., at 294.

266

M ODEL P ENAL CODE AND COMMENTARIES 5.01 cmt. 1, at 298. Commonwealth v. Hamel, 752 N.E.2d 808, 815 (Mass. App. Ct. 2001). 271 M ODEL P ENAL CODE AND C OMMENTARIES 5.01 cmt. 6(a), at 329-30; D UFF, supra note 1, at 54; see, e.g., United S tates v. Prichard, 781 F.2d 179, 182 (10th Cir. 1986) (noting that under modern attempt law, liability attaches prior to the last proximate act which allows for earlier police intervention and serves the preventative purpose of attempt liability).
270 272 273 274 275

269

United S tates v. S tallworth, 543 F.2d 1038, 1041 (2d Cir. 1976). Id. at 1039. Id. Id. at 1040.

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men without incident.276 The United States Court of Appeals for the Second Circuit, applying the Model Penal Code test, found that the would-be robbers took substantial steps that strongly corroborated their criminal intent.277 Arguably, a conviction for attempted armed robbery under Massachusetts law on the Stallworth facts is by no means certain because [the men] neither entered the bank nor brandished weapons. 278 In other words, the men had not reached a time and place where armed robbery could be committed.279 Therefore, in Massachusetts, this situation could have placed law enforcement in the quandary of having to wait until the men actually entered the bank to avoid jeopardizing a possible attempt conviction.280 However, asking law enforcement to evaluate subtle distinctions as to how close is close enough for an attempt conviction in the middle of an extremely dangerous situation is simply unreasonable.281 Even if the Massachusetts courts could find criminal attempt on these facts, the uncertainty and attendant risk of delay out in the field is unacceptable.282 Indeed, in Stallworth , the timely intervention [of law enforcement] probably prevented not only a robbery but possible bloodshed in an area crowded with noontime shoppers. 283 Turning to the facts of Commonwealth v. Ortiz , Massachusetts police could not intervene based on attempted assault and battery while Ortiz was still in the process of searching for his intended victim with a loaded gun.284 This defies common sense and contradicts the important function of
Id. Id. at 1041. 278 See United S tates v. S tallworth, 543 F.2d 1038, 1040 (2d Cir. 1976) ([A]ppellants assert[ed] they [could not] be convicted of attempted bank robbery because they neither entered the bank nor brandished weapons.); Commonwealth v. Bell, 917 N.E.2d 740, 747 n.9 (Mass. 2009) (noting that, in police sting operations, the defendant must come very close to the presumed location of the victim).
277 279 See Commonwealth v. Peaslee, 59 N.E. 55, 57 (Mass. 1901) (requiring the defendant to have the criminal intent at a time and place where he was able to carry it out). 280 See M EEHAN, supra note 123, at 96 (If the police intervene too early, the accused gets off scot-free . . . and if they intervene too late, the crime is already committed.). 281 See M ODEL PENAL CODE AND COMMENTARIES 5.01 cmt. 5(a), at 322 (Official Draft and Revised Comments 1985) (The physical proximity test does not provide [clear] guidance in answering the crucial problem of how close is close enough for attempt l iability.). 282 See Commonwealth v. Bell, 917 N.E.2d 740, 760 (Mass. 2009) (Gants, J., dissenting) (noting the states attempt formulation will present police with a risky choice between allowing a criminal to reach the time and place of the intended crime or intervening earlier and risking conviction). 283 United S tates v. S tallworth, 543 F.2d 1038, 1041 (2d Cir. 1976). 284 See 560 N.E.2d 698, 703-04 (Mass. 1990) (holding that searching for the intended victim with a loaded gun did not warrant a finding of an overt act sufficient to establish attempted 276

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crime prevention for which law enforcement officers are responsible.285 The Model Penal Code addresses this situation by identifying the act of searching for the contemplated victim as a substantial step. 286 Louisiana s attempt statute similarly identifies searching for the intended victim with a dangerous weapon as sufficient to establish attempt liability. 287 Application of the Louisiana provision to the facts of Rome v. Guillory illustrates the soundness of this approach. 288 In Guillory , the defendant s daughter called the police to report that her father had loaded a pistol and stated that he intended to kill police officers.289 Officers located the father in his truck two miles away from the police station with a loaded handgun on the dashboard and arrested him.290 The Fifth Circuit Court of Appeals held that police officers had probable cause to arrest the father for attempted battery (simple assault), because he was searching for his intended victim with a dangerous weapon and with the intent to use force or violence on that victim. 291 Conversely, in Massachusetts, a finding of attempt is uncertain on these facts since the father had not reached the station, i.e., a time and place where he could commit the battery.292 Thus, Massachusetts police could have been placed in the difficult and dangerous position of delaying intervention to ensure an attempt conviction.293 V. Alternatives to Wholesale Adoption of the Model Penal Code The Bell 294 and Pitts295 cases, and perhaps more recently the Penn State

assault and battery). See Terry v. Ohio, 392 U.S . 1, 35 n.1 (1968) (Douglas, J., dissenting). M ODEL P ENAL CODE 5.01(2), (2)(a) (1962). 287 L A. REV . S TAT. A NN. 14:27(B)(1) (2012). 288 See Rome v. Guillory, 335 Fed. Appx. 425, 426 (5th Cir. 2009) (per curiam). It should be noted that Guillory is an unpublished and nonprecedential opinion. 289 Id. 290 Id. 291 Id. at 428. 292 See Commonwealth v. Peaslee, 59 N.E. 55, 57 (Mass. 1901) (explaining attempt liability required defendant to have the criminal intent at a time and place where he was able to carry it out.).
286 285

See Commonwealth v. Bell, 917 N.E.2d 740, 760 (Mass. 2009) (Gants, J., dissenting) ([T]he Commonwealth will need to make a perilous choice between allowing a suspect to reach the time and place of the commission of his intended crime before intervening or intervening earlier and thereby forfeiting any possibility of ever conviction him of the crime of attempt.). 294 Bell, 917 N.E.2d at 740. 295 Commonwealth v. Pitts, No. 08-P-1596, 2010 WL 841292, at *1 (Mass. App. Ct. Mar. 12, 2010).

293

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sex abuse scandal,296 reinforce[] the importance of reexamining the rules, laws and assumptions we employ in our efforts to protect children from sexual abuse.297 Violent child rape is unique . . . [n]o other crime inflicts comparable damage . . . [a]nd no other crime requires the peculiar depravity manifested by those who rape small children.298 The Massachusetts legislature could specifically target attempts to commit this heinous crime in one of two ways.299 First, the legislature could make attempted rape of a child a separate crime with a less stringent act requirement.300 Alternatively, the legislature could carve out a clause in the general attempt statute that broadly accounts for the type of conduct in the Pitts and Bell cases.301 The Massachusetts legislature employed the first approach when it enacted a separate attempted arson statute in the wake of the Peaslee decision.302 Similarly, the legislature could create a new statute making it attempted rape of a child to commit[] any act preliminary thereto or in furtherance thereof.303 The Massachusetts Supreme Judicial Court already interpreted this language as a broader definition of attempt than the proximity approach that is applied under the general attempt statute. 304 The second approach is reflected, philosophically, in Louisiana s general attempt statute, which contains a clause specifically making it an attempt to l[ie] in wait with a dangerous weapon with the intent to commit a crime, or search[] for the intended victim with a dangerous

296 In 2011, Jerry Sandus ky, defensive coordinator of Penn S tates football program, was charged with sexually molesting several boys, many of whom he met through a charity organization he founded. Frank Bruni, The Molester Next Door, N.Y. TIMES, Nov. 8, 2011, at A27, available at http://www.nytimes.com/2011/11/08/opinion/the -molester-nextdoor.html?_r=0. 297 Editorial, Lessons From Penn State, M ETRO W. D AILY NEWS , Nov. 16, 2011, at A9, available at http://metrowestdailynews.com/opinions/editorials/x1931303159/Editorial-Lessons-fromPenn-S tate.

Kennedy v. Louisiana: Brief of Texas, Alabama, Colorado, Idaho, Missouri, Mississippi, Oklahoma, South Carolina, and Washington as Amici Curiae Supporting Respondent, 21 FED. SENTG REP. 145, 145 (2008). 299 See infra footnotes 302-312. 300 Cf. M ASS . GEN. L AWS ch. 266, 5A (2010) (criminalizing attempted arson independent of the general attempt statute); Commonwealth v. Mehales, 188 N.E. 261, 262-63 (Mass. 1933) (The unmistakable terms of section 5A defining what constitutes an attempt have superseded, with respect to cases coming within their sweep, the narrower conception set forth in Commonwealth v. Peaslee . . . .).
301 302 303 304

298

See generally supra Part II.B. See supra text accompanying notes 106-09. Cf. M ASS. G EN. LAWS ch. 266, 5A (2010). See Mehales, 188 N.E. at 262-63.

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weapon with the intent to commit a crime . . . .305 This clause was added by the Louisiana legislature in direct response to the seminal New York attempt case of People v. Rizzo .306 In that case, four armed men planned to rob a man carrying a payroll of about $1,200 from the bank to a company s office.307 The men were driving around searching for the payroll carrier when they were arrested by police.308 Applying the dangerous proximity test, the New York Court of Appeals overturned the convictions for attempted robbery.309 Specifically, the Court held that the men s actions did not come so near the commission of a robbery that there was a reasonable likelihood of success.310 In response to this holding, the Louisiana legislature created a carve-out in its general attempt statute [i]n order that such offenders as the gangster in the Rizzo case shall not go scot free, where due to the alertness of the police they are apprehended while searching or lying in wait for the victim . . . .311 Similarly, the Massachusetts legislature could create a specific carve-out in the states general attempt statute that would reach the conduct undertaken by the defendants in the Bell and Pitts attempted rape cases.312 Although some reform is better than none at all, the solutions of adding a specific carve-out in the general attempt statute or the creation of another crime-specific, stand-alone attempt statute are less than ideal. 313 There is an obvious inefficiency to gradually removing specific offenses from the general attempt statute or creating specific carve-outs each time the Massachusetts courts issue a controversial ruling that provokes a

See LA. REV . S TAT. A NN. 14:27(B) (2007). Id. at 14:27 reporters cmt.; M ODEL P ENAL CODE AND COMMENTARIES 5.01 cmt. 6(b)(i), at 333 (Official Draft and Revised Comments 1985).
306

305

People v. Rizzo, 158 N.E. 888, 888 (1927). Id. 309 Id. at 889-90. 310 Id. 311 L A. REV . S TAT. A NN. 14:27 reporters cmt. (200 7). Notably, when the ALI drafted subsection 2(a) of the Model Penal Code for criminal attempt, ALI used the Louisiana statutes clause as its model. See M ODEL P ENAL CODE AND COMMENTARIES 5.01 cmt. 6(b)(i), at 333-34 (Official Draft and Revised Comments) (S ubsection (2)(a) follows the Louisiana statute except that it eliminates the requirement of a dangerous weapon and encompasses acts of following.). 312 See generally Commonwealth v. Bell, 917 N.E.2d 740, 744 -50 (Mass. 2009); Commonwealth v. Pitts, No. 08-P-1596, 2010 WL 841292, at *1-*2 (Mass. App. Ct. Mar. 12, 2010).
308 313 See, e.g. , P ROPOSED C RIMINAL CODE OF M ASSACHUSETTS , ch.263, pt. 6, 45 revision commission note (1972) (noting that the Massachusetts attempted arson statute was passed in the wake of the Peaslee decision).

307

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community response.314 Moreover, these alternative solutions are half measures that would leave the larger problem unsolved: an attempt formulation that is unclear, narrowly focused, and incon sistent with optimum law enforcement.315 Therefore, in summary, although alternatives to wholesale adoption of the Model Penal Code formulation are feasible, they fall well short of a comprehensive solution. 316

CONCLUSION
The Massachusetts Supreme Judicial Court is the oldest court in continuous service in the [western] hemisphere 317 with a rich legacy of landmark decisions and important legal precedents. The interpretation of the Massachusetts attempt statute, principally set down by Justice Oliver Wendell Holmes Jr., has served as the law of attempt in the Commonwealth for well over 100 years. Justice Holmes himself, however, recognized that a rule is not justifiable simply because it has been handed down through history. Tradition should not override rational policy and the law of criminal attempt has evolved considerably since 1901 . A series of Massachusetts court decisions strongly suggest the need for a change in the statutory formulation of attempt in the Commonwealth. These decisions are the direct consequence of the Massachusetts proximity test, which is inherently flawed. The Massachusetts proximity test does not adequately address the goals of penal law because it fails to recognize the culpability of individuals whose criminal designs fail due to a fortuitous circumstance, as when the intended victim cannot be located. 318 In addition, the Massachusetts test focuses so narrowly on acts and their relative proximity, that it disregards the demonstrated dangerousness of an actor under the totality of the circumstances. The Model Penal Code, on the other hand, provides for a broader assessment of the dangerous character of the actor, recognizing the need to

314 See, e.g. , id. (noting that the Peaslee ruling led to the passage of the Massachusetts attempted arson statute); Press Release, supra note 120 (explaining that the proposed legislation to change the definition of attempt was drafted in response to the S upreme Judicial Courts decision in Bell). See generally supra Part II.A.

See supra Part III. See supra Part V. 317 HISTORICAL S OCIETY, supra note 85, at 8. 318 See M ODEL P ENAL C ODE AND COMMENTARIES , 5 intro., at 294 (Official Draft and Revised Comments 1985). The introduction to Article 5 also points the reader to 1.02 to reinforce the penal goals that Article 5 is meant to achieve: [1](a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests [and] ](b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes.). Id. 1.02, at 13.
316

315

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restrain individuals who represent a danger to society, on the present occasion and in the future. The Massachusetts proximity approach lacks clarity, partly due to the scarcity of case law, but more significantly with respect to the affect the gravity of the crime or the seriousness of the threatened danger have on proximity. In contrast, the Model Penal Code provides clarity by providing specific examples of conduct that are sufficient to establish a substantial step. In addition, the Code s approach is further elucidated by the wealth of case law applying the test to a wide array of fact patterns. Finally, the Massachusetts test inhibits effective law enforcement because wrongdoers do not cross the Rubicon from preparation to attempt until they are very close to committing the underlying crime. The result of confining attempt liability to such a narrow band is that police may delay intervention in certain situations so they do not jeopardize a valid attempt charge. Conversely, the Model Penal Code expands the reach of attempt liability. This approach facilitates timely police intervention serving the preventive purpose of criminal attempt law and the protection of public safety . As a matter of sound public policy, revision of the Commonwealth s general attempt statute is needed.319 Thus, Massachusetts should adopt the Model Penal Code formulation of criminal attempt as proposed by Senator Morrissey during the 186th legislative session.320

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See generally supra Parts III-IV. See S .B. 2479, 2009 Leg., 186th S ess. (Mass. 2009).