1 See my earlier effort, Enker, Impossibility in Criminal Attempts-Legality and the Legal Process, 53 Minn. L. Rev. 665 (1969).Google Scholar

2 See Herbert L. Packer, The Limits of the Criminal Sanction 54 (Stanford, Calif.: Stanford University Press, 1968). The movement described appears to have peaked. For theoretical criticism, see e.g., Norval Morris, The Future of Imprisonment (Chicago: University of Chicago Press, 1974); Ernest van den Haag, Punishing Criminals (New York: Basic Books, 1975); Andrew von Hirsch, Doing Justice (New York: Farrar, Straus, 1976); Twentieth Century Task Force on Criminal Sentencing, Report-Fair and Certain Punishment (1976).Google Scholar

3 See Model Penal Code art. 5, Comment (Tent. Draft No. 10, 1960).Google Scholar

4 Packer, supra note 2, at 100.Google Scholar

5 James F. Stephen, A Digest of the Criminal Law of England art. 223 (3d ed. London: Macmillan & Co., 1877); Hyam v. Director of Pub. Prosecutions, [19741 2 W.L.R. 607 (H.L.).Google Scholar

6 E.g., Whybrow, 35 Crim. App. 141 (1951); Regina v. Grimwood, [19621 2 Q. B. 621 (C.A.); Thacker v. Commonwealth, 134 Va. 767, 114 S.E. 504 (1922). Two exceptional cases are discussed in text at notes 45-52 infra.Google Scholar

7 Such enactments usually dealt with particular activities, such as driving a car or handling explosives. More recently, statutes dealing with dangerous risk-creating activity in general have been enacted. E.g., N.Y. Penal Law secs. 120.20,.25 (McKinney 1975). This reflects undoubtedly the influence of the Model Penal Code sec. 211.2. See also Herbert Wechsler, The Challenge of a Model Penal Code, 65 Harv. L. Rev. 1097, 1106-7 (1952).Google Scholar

8 Rollin M. Perkins, Criminal Law 573-74 (2d ed. Mineola, N.Y.: Foundation Press, 1969); J. W. Cecil Turner, Kenny's Outlines of Criminal Law 103 (19th ed. Cambridge: University Press, 1966); 1 J. W. Cecil Turner, Russel on Crime 177 (12th ed. London: Stevens & Sons, 1964); J. W. Cecil Turner, Attempts to Commit Crimes, in L. Radzinowicz & J. W. C. Turner, eds., The Modern Approach to Criminal Law 273, 278 (English Studies in Criminal Science, vol. 4) (London: Macmillan & Co., 1945); J. H. Beale, Jr., Criminal Attempts, 16 Harv. L. Rev. 491 (1903); J. C. Smith, Two Problems in Criminal Attempts, 70 Harv. L. Rev. 422, 434 (1957) [hereinafter cited as Two Problems]; J. C. Smith, Two Problems in Criminal Attempts Reexamined-I, [1962] Crim. L.R. 135, 136 [hereinafter cited as Two Problems Re-examined]; Colin Howard, Australian Criminal Law 288 (2d ed. Melbourne: Law Book Co., 1970).Google Scholar

9 Oliver Wendell Holmes, Jr., The Common Law 66 (Boston: Little, Brown & Co., 1881).Google Scholar

10 Id. at 39-76.Google Scholar

11 Id. at 66.Google Scholar

12 H. L. A. Hart, Intention and Punishment, in Punishment and Responsibility: Essays in the Philosophy of Law 113-35 (Oxford: Clarendon Press, 1968); Donald Stuart, Mens Rea, Negligence and Attempts, [19681 Crim. L.R. 647; Glanville Williams, The Mental Element in Crime, 27 Revista Juridica de la Universidad de Puerto Rico 193 (1957-58).Google Scholar

13 See Stephen J. Schulhofer, Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the Criminal Law, 122 U. Pa. L. Rev. 1497 (1974). Smith is ambivalent. See J. C. Smith, The Element of Chance in Criminal Liability, [1971] Crim. L.R. 63.Google Scholar

14 Model Penal Code art. 5, Comment (Tent. Draft No. 10, 1960).Google Scholar

15 Id. at 32-38. Recent American code revisions generally follow the Model Penal Code's position favoring abolition of the defense. E.g., Ill. Ann. Stat. Ch. 38 sec. 8-4 (Smith-Hurd 1972); Pa. Stat. Ann. tit. 18, sec. 901(b) (Purdon 1973); Conn. Gen. Stat. Ann. sec. 53a-49 (West 1972) (though the requirement that the act corroborate the actor's intent may preserve some vestiges of the defense of impossibility in extreme cases); N.Y. Penal Law sec. 110.10 (McKinney 1975) (though the explicit elimination of the defense of impossibility is arguably contradicted by the definition of attempt in sec. 110.00, which requires “conduct which tends to effect the commission” of the intended crime; but see People v. Dlugash, 21 Cr. L. 2238 (June 15, 1977), in which the court and counsel apparently missed the problem); S. 1, 94th Cong., 1st Sess. sec. 1001(c) (1975) (though sec. 1001(a) requires conduct “that … indicates his intent to complete, the commission of the crime”). The Minnesota Criminal Code of 1963, Minn. Stat. Ann. sec. 609.17, subd. 2 (West 1974), restricts the defense of impossibility to those cases in which the “impossibility would have been evident to a person of normal under-standing.”Google Scholar

Two recent American cases upholding the defense of impossibility are United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976), and United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973). The latter case may be sui generis. In England, see the recent House of Lords decision in Haughton v. Smith, 119731 3 All E.R. 1109, and Glanville Williams's sharply critical comments thereon in 119741 Camb. L.J. 31.Google Scholar

16 Model Penal Code art. 5, Comment (Tent. Draft No. 10, 1960). Current sentencing schemes allow broad discretion in implementing the statutory range so that judges and parole boards may continue to treat attempt and completed crime differently. It should be noted that if some of the current proposals to reduce such discretion are adopted, the effect of the elimination of the legislative differential may be considerably more far-reaching.Google Scholar

17 See text at notes 45-52 infra.Google Scholar

18 The Model Penal Code would expand the requirement of intent slightly to include anything done “with the belief that it will cause” the forbidden result, sec. 5.01(1)(b), but state codes have not gone along with this. See, e.g., N.Y. Penal Law sec. 110.00 (McKinney 1975); Ill. Ann. Stat. ch. 38, sec. 8-4 (Smith-Hurd 1972); Minn. Stat. Ann. sec. 609.17, subd. 1 (West 1964).Google Scholar

19 E.g., N.Y. Penal Law secs. 120.20,.25 (McKinney 1975); Ill. Ann. Stat. ch. 38, sec. 12-5 (Smith-Hurd 1972).Google Scholar

20 See Model Penal Code sec. 5.05(1) (Proposed Official Draft, 1962).Google Scholar

21 The matter is usually considered in the context of attempted murder, but there is no special reason why the argument cannot be extended to encompass attempted manslaughter as well. See, e.g., Stuart, supra note 12.Google Scholar

22 See Jerome Hall, General Principles of Criminal Law 212-46 (2d ed. Indianapolis: Bobbs-Merrill Co., 1960); Jerome Hall, Studies in Jurisprudence and Criminal Theory 247-50 (New York: Oceans Publications, 1958); Albin Eser, The Principle of “Harm” in the Concept of Crime: A Comparative Analysis of the Criminally Protected Legal Interests, 4 Duquesne L. Rev. 345 (1966).Google Scholar

23 Enker, supra note 1, at 687-94. A recent federal court decision applied these views and acquitted the defendant of a charge of attempted distribution of heroin where it turned out, apparently to the defendant-seller's suprise, that the substance he sold was not heroin but a similar looking uncontrolled substance. United States v. Oviedo, 525 F.2d 881 (5th Cir. 1976). On the other hand, State v. Young, 57 N.J. 240, 271 A.2d 569 (1970), rejected the contention that the state could not punish conduct, itself innocent, because of the intent that accompanied the conduct. The defendant was convicted of entering a school building with the intent to disrupt classes. Since the statute applied only to entry by someone other than a student, parent, teacher, administrator, or other school employee, I would conclude that the actus reus of the offense was sufficiently unique and defined to withstand constitutional challenge even if the notion advanced in the text were constitutionally recognized. A school is not an open uncontrolled setting. In any event, it is not my burden to assert the constitutional status of the thesis. Wise policy is a sound basis for legislation even when not constitutionally required.Google Scholar

24 See the discussion in Wayne R. LaFave & Austin W. Scott, Jr., Handbook on Criminal Law 431-36 (Hornbook Series) (St. Paul: West Publishing Co., 1972); Model Penal Code art. 5, Comment (Tent. Draft No. 10, 1960).Google Scholar

25 E.g., N.Y. Penal Law secs. 120.20,.25 (McKinney 1975); Ill. Ann. Stat. ch. 38, sec. 12-5 (Smith-Hurd 1972). See Model Penal Code sec. 211.2 (Proposed Official Draft, 1962).Google Scholar

26 The mens rea required by Model Penal Code sec. 211.2 (Proposed Official Draft, 1962) is recklessness. Pursuant to sec. 2.02(5) of the Model Penal Code, the element of recklessness is also established if the defendant has created the risk knowingly or purposely. But the code provision deals with the creation of risk of harm, not with intent to harm.Google Scholar

27 The definition of attempt is taken from Model Penal Code sec. 5.01(1)(c) (Proposed Official Draft, 1962). Although such a case might once have been thought to present an issue of impossibility, today there is a consensus that the actor should be guilty of attempted murder.Google Scholar

28 Id. What constitutes conduct that “may place” someone else “in danger” depends on the degree to which the actor's conduct is abstracted from its actual setting. For example, driving very fast on the wrong side of the road while going around a curve is not in fact dangerous in the concrete instance if there is no traffic coming in the opposite direction. In general, however, it is highly dangerous. Litigation in the examples mentioned in the text would turn on this issue of how much to abstract the conduct. Where, as in attempt, there is intent to harm and not merely to risk harm, a greater degree of abstraction is permitted.Google Scholar

29 N.Y. Penal Law sec. 120.20 (McKinney 1975). Here, too, some measure of abstraction is probably permissible, but elimination of the word “may” suggests a narrower range than that allowable under the Model Penal Code.Google Scholar

30 It is not necessary to prove the likelihood of such an occurrence in each specific case. The actor's unsatisfied intent to kill his victim raises sufficient danger that these events will occur to warrant forceful intervention.Google Scholar

31 See note 28 supra.Google Scholar

32 See LaFave & Scott, supra note 24, at 430.Google Scholar

33 See Eser, supra note 22, at 368-69.Google Scholar

34 Holmes, supra note 24, at 430.Google Scholar

35 Id. at 5 3-57.Google Scholar

36 This may explain in part why the English writers argue so strongly for expansion of attempt to encompass recklessness. See note 12 supra. The English have long resisted codification of the criminal law. Even current codification efforts do not appear to envisage much more than an updated restatement of the common law. Efforts as detailed and comprehensive as the recent American codes are not to be expected in England.Google Scholar

37 Enker, supra note 1, at 673-75.Google Scholar

38 See, e.g., Stuart, supra note 12.Google Scholar

39 For example, the Model Penal Code's proposed crime of reckless endangerment, sec. 211.2, is merely a misdemeanor that ordinarily carries a maximum penalty of one year. Sec. 6.08 (Proposed Official Draft, 1962). The New York statute adds to this a second category of offense, with a seven-year maximum penalty limited to those few situations of conduct “evincing a depraved indifference to human life.” N.Y. Penal Law sec. 120.25 (McKinney 1975).Google Scholar

40 This may even be the result under the retributive theory in Professor Hart's reformulation, in which the “severity of punishment is proportioned to the allegedly evil intention of the criminal” and “the relative gravity of punishments is to reflect moral gravity of offences” without regard to their actual outcome. Hart, Punishment and Responsibility, supra note 12, at 129, 234. Under this view, the actor's beliefs concerning the risks his conduct creates should determine the degree of his moral guilt and wickedness, even when no risk is actually created. See also id. at 9, 81, 129-32, 230-37.Google Scholar

41 Cf. Williams, supra note 12, at 200.Google Scholar

42 E.g., Hyam v. Director of Pub. Prosecutions, [1974] 2 W.L.R. 607 (H.L.); Stephen, supra note 5.Google Scholar

43 Model Penal Code sec. 2.02(2)(c) (Proposed Official Draft, 1962). See also J. W. C. Turner, The Mental Element in Crimes at Common Law, in Radzinowicz & Turner, eds., supra note 8, at 195, 206-7.Google Scholar

44 Stephen, supra note 5.Google Scholar

45 33 D.L.R.3d 618, 10 Can. Crim. C. (2d) 313 (1973).CrossRefGoogle Scholar

46 Id., at 619, 10 Can. Crim. C. (2d) at 314.Google Scholar

47 Id.Google Scholar

48 The applicability of the court's reasoning to felony murder need not concern us here. For critical comment on the case and discussion of the felony-murder problem, see Note, Attempted Murder, 8 Univ. Br. Colum. L. Rev. 364 (1973). See also Note, Attempts to Murder Recklessly, 15 Crim. L.Q. 19 (1972).Google Scholar

49 In light of Professor Zimring's research, it may not be removed at all in practice. See Franklin E. Zimring, The Medium Is the Message: Firearm Caliber as a Determinant of Death from Assuault. 1 J. Leg. Stud. 97 (1972).Google Scholar

50 One still wonders whether the step, although understandable, was necessary. Defendant Lajoie was convicted by the jury of the lesser charge of discharging a firearm with intent to endanger life, which carries a maximum penalty of 14 years' imprisonment. Canadian Criminal Code sec. 228 (1965). The maximum penalty for attempted murder is life imprisonment. Id. sec. 222. If the difference be thought significant for this case, it should be remembered that Lajoie was also guilty of robbery, for which he could have been sentenced to life imprisonment, Id. secs. 302-3, although he apparently was not indicted for this crime.Google Scholar

51 [19531 2 S.A. 561 (A.D.). See also the report of the Scottish case Currie in Gerald H. Gordon, The Criminal Law of Scotland 231-34 (Edinburgh: W. Green & Son, 1967), and the suggestion that “it may be possible to read Currie as restricted to cases where there is intent to cause some harm of the kind protected by the attempted crime, but it may well be that the Courts will extend it to other common law crimes of recklessness.”Google Scholar

52 [1953] 2 S.A. at 567.Google Scholar

53 Howard, supra note 8, at 292-93.Google Scholar

54 Williams, supra note 12, at 196. See also Hart, Intention and Punishment, supra note 12, at 126-27.Google Scholar

55 As already noted, the breadth of the Model Penal Code proposed reckless-endangerment statute yields the very mild maximum penalty of one year in prison, which is certainly inadequate to deal with these hypothetical cases. By eliminating the “may place” language of the Model Penal Code proposal (see text at note 29 supra) and distinguishing ordinary recklessness from an aggravated form of recklessness “evincing a depraved indifference to human life,” New York was able to impose a seven-year maximum for the more serious cases, which comes much closer to the mark. N.Y. Penal Law sec. 110.25 (McKinney 1975). Where the defendant causes his victim physical harm or uses a dangerous weapon, both of which factors were present in Lajoie and Huebsch, aggravated assault should furnish still another basis for imposing an adequate sentence.Google Scholar

56 On the distinction between results or consequences and external circumstances in this context, see Smith, Two Problems, supra note 8, at 422-26. The distinction is based on Walter Wheeler Cook, Act, Intention, and Motive in the Criminal Law, 26 Yale L.J. 645, 647 (1917).CrossRefGoogle Scholar

57 Such was held to be the law by the Supreme Court of Israel in Cr. App. 291/62, Abou Ravieh v. Attorney Gen., 17 P.D. 2913 (1963), despite the contrary precedent of Reg. v. Prince, L.R. 2 C.C.R. 154 (1875).Google Scholar

58 While the writers are nearly unanimous in their view that this is the desired result (see the discussion in the text infra) there is very little case law to support this approach. The only cases so holding to my knowledge is the decision of the Supreme Court of Israel in Cr. App. 291/62, Abou Ravieh v. Attorney Gen., 17 P.D. 2913, 2933-36 (1963). There, the defendant, a Bedouin, attempted to abduct his heart's desire from her father's custody. The Court held that reckless indifference to the victim's age satisfied both the substantive statute and the attempt provision. While the Court did not draw upon Smith's distinction between consequences and circumstances, its decision supports the distinction. Earlier Israeli decisions are firm in their insistence upon full intent with respect to consequences for attempt liability. E.g., Cr. App. 61/51, Abou Ghosh v. Attorney Gen., 5 P.D. 1249.Google Scholar

59 Glanville Williams, Criminal Law: The General Part 619-20 (2d ed. London: Stevens & Sons, 1961). See also Id. at 475 (1st ed. 1953).Google Scholar

60 Smith, Two Problems, supra note 8, at 422; Smith, Two Problems Re-examined, supra note 8, at 135; J. C. Smith & Brian Hagan, Criminal Law 191-94 (3d ed. London: Butterworths, 1973).Google Scholar

61 Smith, Two Problems, supra note 8, at 434-35.Google Scholar

62 This problem is considered in the final section of this paper, pp. 872-78 infra.Google Scholar

63 Howard, supra note 8, at 288-93.Google Scholar

64 Id. at 292. See also id. at 288: “Attempt implies purpose. To say that D is attempting to do something means that he is acting with the purpose of accomplishing that which he is said to be attempting. There is no disagreement that purpose must be proved for conviction of attempt but different views have been expressed on the scope of the purpose.”Google Scholar

65 See LaFave & Scott, supra note 24, at 431. Gordon, supra note 51, at 231, limits the requirement of full intent to the “central element” of the offense, and his examples reveal that he has in mind the distinction between consequences and circumstances. Similarly, Perkins's discussion of “qualified intent” seems to point in the same direction. Perkins, supra note 8, at 575. For criticism see Peter Brett, An Inquiry into Criminal Guilt 135 (Sydney: Law Book Co. of Australasia, 1963); Richard Buxton, The Working Paper on Inchoate Offenses: (1) Incitement and Attempt, (19731 Crim. L.R. 656, 661-64. Stuart calls the suggested distinction between consequences and circumstances a “somewhat intricate compromise solution,” but that may be because he favors attempt liability for negligence even with respect to consequences. Stuart, supra note 12, at 659.Google Scholar

66 Law Commission Working Paper No. 50, Codification of the Criminal Law, General Principles: Inchoate Offenses: Conspiracy, Attempt, and Incitement 59-61 (London: H.M.S.O., 1973).Google Scholar

67 Buxton, supra note 65, at 661-64.Google Scholar

68 See the quotation from Williams in note 41 supra.Google Scholar

69 Model Penal Code sec. 5.01(1)(a) (Proposed Official Draft, 1962). See also the sources cited in note 15 supra.Google Scholar

70 Cf. Enker, supra note 1, at 698-702.Google Scholar

71 Smith, Two Problems, supra note 8, at 433-34; Smith, Two Problems Re-examined, supra note 8, at 139. The case law is extremely limited. Gardner v. Akeroyd, [1952] 2 Q.B. 743, [19521 2 All E.R. 306, though decided on the point of vicarious liability, is usually regarded as standing for the proposition that there is no absolute liability in attempt. Williams, supra note 59, 2d ed. at 620 n.5; Gordon, supra note 51, at 258; Howard, supra note 8, at 290 n.99; LaFave & Scott, supra note 24, at 430 n.90; Stuart, supra note 12, at 660-61. Smith would distinguish between the issues of vicarious liability and strict liability and restrict the decision to the former (Two Problems Re-examined, supra note 8, at 140-41) but concedes that the analogy is “arguable.” Smith & Hogan, supra note 60, at 193-94. He argues, in turn, that Collier, [1960] Crim. L.R. 204, supports the extension of strict liability to attempt. There, it will be recalled, the court charged the jury that the statutory defense of reasonable mistake concerning the girl's age also applied to an attempt. See note 58 supra. From this Smith would infer that the broader defense that attempt requires mens rea is unavailable. Smith, Two Problems Re-examined, supra note 8, at 141; Smith & Hogan, supra note 60, at 193. Stuart correctly replies that “the meagrely reported decision in Collier…can hardly be regarded as a strong authority.” Stuart, supra note 12, at 661.Google Scholar

72 Smith, Two Problems, supra note 8, at 435.Google Scholar

73 Smith, Two Problems Re-examined, supra note 8, at 143.Google Scholar

74 Smith & Hogan, supra note 60, at 192-94. The argument contra, apart from general antipathy to strict liability expressed in Two Problems Re-examined, supra note 8, at 143-44, is that “attempt. is a common law notion” while “mens rea at common law generally includes recklessness but does not include negligence or blameless inadvertence.”Google Scholar

75 LaFave & Scott, supra note 24, at 431.Google Scholar

76 Stuart, supra note 12, at 660. See also Gordon, supra note 51, at 233-34, doubting whether the view expressed by Smith would be accepted “in view of the court's [sic] dislike of such [strict responsibility] offenses.” Perkins, supra note 8, at 575 n.15, calls Smith's conclusions “fantastic.” Williams, supra note 59, 2d ed. at 620, also rejects Smith's views, but gives no reason other than “attempt requires mens rea” and that this was decided, “and rightly decided,” in Gardner v. Akeroyd, [1952] 2 Q.B. 743.Google Scholar

77 Smith, Two Problems, supra note 8, at 435; Smith, Two Problems Re-examined, supra note 8, at 143; Smith & Hogan, supra note 60, at 192-94; LaFave & Scott, supra note 24, at 429-30; Stuart, supra note 12, at 661-62. As we have seen, Stuart rejects Smith's distinction between consequences and circumstances. He would recognize the possibility of negligent attempt in general, including attempted negligent involuntary manslaughter.Google Scholar

78 See, e.g., Williams, supra note 59, 2d ed. at 122-24; Hall, supra note 22, at 135-39; Model Penal Code sec. 2.02, Comment (Tent. Draft No. 4, 1955).Google Scholar

79 Cf. Packer, supra note 2, at 74-75:Google Scholar

80 Id. at 75. See the more extended quotation in note 79 supra.Google Scholar

81 The argument is logical, and empirical verification would appear to be difficult to obtain. Still the point appears quite reasonable. Compare the argument advanced by the draftsmen of the Model Penal Code that the threat of punishment for inchoate crimes does not add significantly to the general deterrent effect of the penalty for the completed crime which the actor by hypothesis chooses to ignore. Art. 5, Comment (Tent. Draft No. 10, 1960). This view has been criticized on the ground, among others, that the risk of detection will often be greater in the case of failure than of success. E.g., Hart, supra note 12, at 128-29. Hart's point has no bearing on the issue under consideration here, since by hypothesis the actor is unaware of the fact that he is violating the law. Hart also points out the distinction between general and specific deterrence in relation to attempts. Id.Google Scholar

82 Smith, Two Problems Re-examined, supra note 8, at 142; Smith & Hogan, supra note 60, at 193.Google Scholar

83 The effect of the actor's ignorance of the child's age on his mens rea in general is considered in Williams, supra note 59, 2d ed. at 155.Google Scholar

84 Id., 1st ed, at 123-24.Google Scholar

85 Williams himself calls it “rather forced.”Id. at 124. Although he does not repeat the specific example in the second edition of his treatise, his discussion of the problem does not reflect any basic change of view. Indeed, referring to the other examples, he repeats his characterization that the meaning attributed to recklessness in these cases is “rather forced.”Id., 2d ed. at 154-56.Google Scholar

86 The stock argument that recognition of the defense of mistake of law would encourage ignorance of the law is also inapplicable to this case. The defense proposed is lack of recklessness, which connotes ignoring a risk perceived or at least indifference thereto, not ignorance of the law. But Williams rejects this distinction in a slightly different context because in his view “the fact remains that here we have a situation in which ignorance of the law is the turning-point between guilt and innocence.”Id., 1st ed. at 128.Google Scholar