The Volokh Conspiracy
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The "Abandonment" Defense to Criminal Attempt, and the Person Who Was Planning to Kill Justice Kavanaugh
The plan to kill Justice Kavanaugh is horrible for many obvious reasons. But the one nonobvious question that might arise, and that I thought I'd address, is this—it appears that the would-be killer likely changed his mind, which is why he was arrested:
On June 8, 2022, at approximately 1:05 a.m., two United States Deputy Marshals saw an individual dressed in black clothing and carrying a backpack and a suitcase, get out of a taxicab that had stopped in front of the Montgomery County, Maryland residence of a current Justice of the United States Supreme Court. The individual looked at the two Deputy U.S. Marshals, who were standing next to their parked vehicle, and then turned to walk down the street.
Shortly thereafter, Montgomery County Emergency Communications Center fielded a call from an individual who identified himself as NICHOLAS JOHN ROSKE. ROSKE informed the call taker that he was having suicidal thoughts and had a firearm in his suitcase. ROSKE also told the call taker he came from California to kill a specific United States Supreme Court Justice. The Montgomery County Police Department officers were dispatched to the location near the Supreme Court Justice's residence where they encountered ROSKE, who was still on the telephone with the Montgomery County Emergency Communications Center. ROSKE was taken into custody without incident and law enforcement officers seized both the backpack and the suitcase that were still in his possession.
Assume, for purposes of this question, that Roske called 911 because had completely and voluntarily changed his mind (rather than because, say, he was worried about getting caught). Does that mean that he's not guilty of the crime of attempt (setting aside the separate question of whether he's guilty of threatening a Justice), under the "abandonment" or "renunciation" defense?
The Model Penal Code, and followed by some state courts and statutes, say that yes, such a defense would be available; here, for instance, is the New Jersey statute, based on the MPC:
When the actor's conduct would otherwise constitute an attempt under subsection a. (2) or (3) of this section, it is an affirmative defense which he must prove by a preponderance of the evidence that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention.
But federal law appears to generally say no (though I know of no precedents from the Fourth Circuit, where the case is being prosecuted). U.S. v. Young (8th Cir. 2010) lays it out thus (and see also U.S. v. Tilotta (S.D. Cal. 2022)):
The Model Penal Code lists two considerations for recognizing such a defense [of abandonment] in attempt crimes: (1) "renunciation of criminal purpose tends to negative dangerousness," and (2) "to provide actors with a motive for desisting from their criminal designs, thereby diminishing the risk that the substantive crime will be committed….
[A]ll of our sister circuits that have faced this issue have either held that a defendant cannot abandon a completed attempt or have alluded to such a determination. See U.S. v. Crowley (2d Cir. 2003) (not formally addressing the issue but noting, "[t]he only other circuits that have formally addressed the question have rejected the defense as a matter of federal law"); U.S. v. Shelton (6th Cir. 1994) ("[W]ithdrawal, abandonment and renunciation, however characterized, do not provide a defense to an attempt crime."); U.S. v. Bussey (9th Cir. 1974) ("A voluntary abandonment of an attempt which has proceeded well beyond preparation as here, will not bar a conviction for the attempt."); U.S. v. Wales (10th Cir. 2005) (unpublished) ("[N]either this circuit nor any other circuit to have addressed the issue has held that abandonment or renunciation may constitute a defense to the completed crime of attempt.").
Specifically, in Shelton, the Sixth Circuit rejected the Model Penal Code's approach and held that "withdrawal, abandonment and renunciation, however characterized, do not provide a defense to an attempt crime." The court explained:
… [T]he attempt crime is complete with proof of intent together with acts constituting a substantial step toward commission of the substantive offense. When a defendant withdraws prior to forming the necessary intent or taking a substantial step toward the commission of the offense, the essential elements of the crime cannot be proved. At this point, the question whether a defendant has withdrawn is synonymous with whether he has committed the offense.
[But a]fter a defendant has evidenced the necessary intent and has committed an act constituting a substantial step toward the commission of the offense, he has committed the crime of attempt, and can withdraw only from the commission of the substantive offense.
We are not persuaded that the availability of a withdrawal defense would provide an incentive or motive to desist from the commission of an offense, especially since the success of the defense presupposes a criminal trial at which the issue would be submitted to the jury for decision. A remote chance of acquittal would appear to have an even more remote chance of deterring conduct….
We therefore adopt the Sixth Circuit's approach in Shelton, specifically reject the Model Penal Code approach, and hold that the defense of abandonment is not warranted once a defendant completes the crime of attempt. We acknowledge, that "[a]fter a defendant has evidenced the necessary intent and has committed an act constituting a substantial step toward the commission of the offense, he has committed the crime of attempt, and can withdraw only from the commission of the substantive offense," not the attempt of such offense.
Note also that different states take different views of when something shifts from mere preparation (not a crime) to a punishable "completed attempt"; but the federal courts, as Young note, follow the "substantial step" test: The government must prove that the defendant had the purpose of committing a crime, and that the defendant took a substantial step. Traveling armed to the victim's house, with the intent to commit the crime, would surely qualify as a substantial step. And the attempt is a punishable "completed attempt" even if the defendant didn't take the final step that would have been in his control (such as shooting the gun, even if the shot missed).
UPDATE 6/15/2022: Just for an illustration of what is sufficient (though not necessary) to show a substantial step, see U.S. v. Gonzalez (2d Cir. 2011), a nonprecedential decision, but a good illustration of pretty clearly settled rules:
To be guilty of attempt, a defendant must have (1) intended to commit the crime and (2) "engaged in conduct amounting to a 'substantial step' towards the commission of the crime." A substantial step requires "something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime."
The trial evidence, including Franco's testimony and the physical evidence obtained at the crime scene, established that at the time they were arrested the defendants (1) intended to rob Media Plaza, (2) were in possession of the tools necessary to do so (including guns, latex gloves, duct tape, and ski masks), and (3) had arrived at the scene of the planned robbery. The evidence also showed that the defendants and their co-conspirators had cased Media Plaza; indeed, by the time the defendants were arrested Gonzalez had exited the car twice to scope out the area. Moreover, Gonzalez had already put on latex gloves, from which the jury could reasonably infer that the robbery was imminent.
Defendants' reconnoitering at the scene of the contemplated crime while in possession of paraphernalia which, under the circumstances, could serve no lawful purpose (including a real firearm, a starter pistol, and ski masks) constitutes a substantial step, and amply corroborates their criminal purpose. Therefore, the evidence was sufficient to convict the defendants of attempted robbery.
Disclosure: I clerked the same year as Brett Kavanaugh, and got to know him and like him then (and we also both clerked for the same circuit judge, Judge Alex Kozinski, though a year apart). Our paths have crossed on occasion after that, always pleasantly, though not very often.
