Should Impossibility Be a Defense?

In some ways, this is a classic law-school hypothetical: what is the man guilty of who picks an empty pocket, or or who shoots at a stuffed decoy deer when it’s not deer season, or who fires a bullet into a corpse, believing it’s a man asleep who he wishes to kill?

You clearly cannot convict the guy in the first example of theft - he stole nothing. There is no law against shooting a stuffed deer at any time of the year, so even though the second fellow was obviously trying to hunt deer out of season, he did not. And the third guy may be guilty of some garbage like “mutilating a corpse,” but he’s clearly not guilty of murder, since he didn’t kill anyone.

This enters the real world when Detective Joe Friday goes online with his AOL account pretending to be a 13-year-old girl. He receives messages from someone interested in forming a sexual relationship, replies, and ultimately sets up a meeting. When the malefactor arrives, pockets full of condoms and a motel key in hand, clearly ready for the assignation, he’s arrested.

But wait, he cries! It was impossible to charge me with sex with a minor… or even with attempted sex with a minor. There was no minor here! Only beefy Joe Friday, who was last a minor when Eisenhower was president. There was no possibility of my ever completing this crime, since there was never a real minor involved. Therefore, I have committed no crime, and haven’t even attempted to commit a crime, because it was impossible for me to have committed a crime. Therefore, you should let me go.

States that use the Model Penal Code don’t have this problem; the Model Penal Code’s “attempt” clauses focus on what the defendant believed. But some states, to this day, do not use the MPC framework, and their “attempt” statutes focus on an “objective” view of criminality, on whether the defendant actually came close to completing a prohibited act.

The impossibility of completing the offense is very germane to the objective approach because impossibility vitiates the Commonwealth’s theoretical concern that the actor may cause or come close to causing the harm or evil that the offense seeks to prevent.

In such states, if an element of the offense cannot be established, an accused cannot be found guilty of the prohibited act.

Or so it seems to me.

Law Dopers amongst us - am I right or wrong? And if I’m right - should all states follow the Model Penal Code, especially in the area of defining “attempt”?

Virginia has never been a trendsetter in this area, as has wryly been observed before.

I honestly don’t remember the objective approach all that well at this point, but it seems to me that the MPC is the right approach. If there are certain crimes where you want impossibility to be a defense, you simply do not provide for an “attempted” cause of action.


I’m not a lawyer, but it seems to me that your hypothetical comes awfully close to convicting someone for something that might have been done if the defendant had only had the opportunity.

In the interest of “security” or “protecting children” we skate closer and closer to the line of abandoning all pretense of requiring that there be an actual act before sending someone to jail.

Mere possession of a certain amount of marijuana can send you to jail. I think this is bad, especially when I’m not even convinced that actually smoking it is any worse than drinking alcohol, or abusing legal, prescribed drugs.

Not awfully close - the defendant is, in fact, convicted for something they might have done (in this case, child molestation) had he only had the opportunity. Of course, for most “attempt” statutes, the sentence is lesser than for actual successful commission of the crime.

Ahh, here we go. The (valid) heart of the objective analysis approach. But, I submit, there is an “act” occurring here - in the hypothetical, the defendant arranges a meeting with a person he believes to be a minor, sets up the hotel room, buys the condoms, etc. And those acts are the basis of the charge.

Let’s take this out of the charged realm of child abuse for a second, and look at the flip side of the classic “shooting the corpse” scenario. In my hypothetical, a man points a pistol at someone and pulls the trigger. If the man shoots and misses, he’s guilty of attempted murder. But what if the gun, unknown to the man, is defective? He pulls the trigger, and nothing happens. Should he be charged with attempted murder? I would say yes. Society has an interest in deterring and punishing even attempts at criminal acts - you want people who have formed the mens rea to commit a crime off the street before they can successfully act on that mens rea

I assume you are talking about “possession with intent to distribute.” I agree with you, but I submit this is a different issue. In that case, the law infers the mens rea to commit the crime of selling pot. Attempted criminal statutes do not do so (at least the well-drafted ones).


I basically agree with Sua that the MPC approach is correct. Punishing people for “attempts” serves the purposes of deterrence and incapacitation.

Of course, the classic example of “attempt” law gone too far is the witch-doctor who sticks pins in a doll and is later charged with attempted murder.

As I recall, the Model Penal Code has a ‘safety valve’ built into it for “attempts” that so wildly miss the mark that punishment would be inappropriate.

IMO, it devolves down to whether you are criminalizing the act, or the attempt. If it is the attempt itself which is the crime – the trying, not the doing – then impossibility is not a defense. If you are criminalizing the act, then anything short of the act is not a crime.

What states do this? How do they measure whether the defendant “actually came close” to doing the crime or not? How is this more objective that the MPC approach of deeming one or more positive steps undertaken in furtherance of a crime to constitute an attempt?

To me, the logical fallacy is here:

. . . In that it says if you cannot do an impossible act, you cannot attempt to do an impossible act.

My understanding of “attempt” is that the attempt is the crime. Not that you tried (and failed) to kill someone, but that you tried (and suceeded) in trying to kill someone. (If that makes sense.) So it doesn’t matter if the victim is dead, or not a real person, or not really a minor, or whatever. In the other system (if I am understanding it correctly), you cannot try to do an ipossible thing. I don’t think this follows; it seems to me to be perfectly possible to try to do an impossible thing – so long as the actor does not know it is impossible. (If he/she knows it is impossible, then of course you are not dealing with a true attempt.)

Under the other system, if it is the act itself which constitutes the criminal conduct, then I don’t see how attempt could ever be considered a crime.

Just to clarify the discussion a bit, there are two types of impossibility - legal and factual.

Factual impossibility has been what we have been talking about - shooting the corpse, etc.
Legal impossibility is where a person shoplifts some candy from a store, but it turns out that the “shoplifted” candies were free samples. You have the intent to commit a crime, but your action turns out to be legal.
Under both the MPC and the objective approach, legal impossibility is a full defense.


AFAIK- none of these cases have every achieved full Judicial scrutiny- ie, they have not been appealed all the way. The DA’s involved in such cases often pull a very dirty trick- they charge the defendant with so many counts & charges that the defendant, if found guilty- would spend a dozen consecutive life terms.

They then offer a plea bargain on one reduced count- so that the defendant will get convicted of a “sex crime” and a felony- but often spend very little actual prison time- sometimes no add’l time at all.

Since the defendant is certainly guilty of the “attempt”- and juries do love to “throw the book” at such “dangerous perverts”- they are advised to cop the plea. The huge amounts of legal bills involved are certainly a consideration.

A little while ago- some defendant refused to “play that game” when accused of child porno possesion. The Appeals Court threw out enough of the conviction to cast serious doubts on his convictabilty- and thus the DA made a very nice “plea bargain”. (I think no jail time at all).

I think someday some wealthy man will fight his accusation of “child molestation” “all the way to the Supreme Court”. It will be interesting to see what happens then.

What seems to be wrong here is the huge differance between what would be the actual sentence (2000 years in a maximum security prison)- and the “offer”- maybe one year in a minimum security workfarm. Not to mention that the legal fees usually will bankrupt the accused. Given this disparity- some dudes who are even 100% innocent would plead.

Oh good, since the defendant actually committed no child molestation we’ll not punish him so much.

I see the point. I guess my objection is that this gives a prosecutor a lot of discretion. And this sort of violates the “checks and balances” theory that says no official is to be trusted too far. “Power corrupts …” and all that.

So the prosecutor doesn’t have to prove “intent.” “Intent” in the case of a two-bit street dealer is built into the statute while it has to be proved in the case of a multi-million dollar fraud case that wipes out the life savings of hundreds of people. I realise that this borders on saying that if you can’t convict everybody then you shouldn’t convict anyone, but I think the scales could be a little more balanced.

Ah yes, but if all statutes were well drafted, and if all police were paragons of justice and if all prosecutors were as interested in even-handed justice as they are in convictions there wouldn’t be any problem at all.

There are plenty of real scumbags involved in the child porn and in the drug business but I’m not sure that making it so easy for the prosecutors is anything other than the equivalent of putting mercurochrome on syphillis ulcers, so to speak.

I understand your point about the intent being built into the statute, but is there any real difference between a system that presumes that if you possess a certain amount of marijuana, you intend to distribute it, and one which has no such presumption , but bases the degree of the possession charge on the amount of marijuana, so that although the charge is just “criminal possession of marijuana in the third degree”,it’s still a felony?

Well, yes.

But let’s pare it down even further, because I believe this is key to understanding and resolving the issue. Legal impossibility is further divided into “full” and “hybrid” legal impossibility.

Pure, or full, legal impossibility exists when the law does not actually prohibit the conduct of the actor in question, even though the actor may believe it does. For example, assume that the law forbids the transportation of more than five gallons of liquor across state lines. If Albert believes the law to forbid a four-gallon move, and he tries to transport four and a half gallons of fine malt whisky into Virginia, thinking he’s cheating the system… he is safe.

Hybrid legal impossibility arises when the goal was illegal, but actual commission of the offense was impossible due to a factual mistake by the actor as to some factor relevant to the crime. Since this involves both fact and law, it’s appropriate to use “hybrid.”

Courts have recognized a defense of legal impossiblity, or said in dicta it would exist, for such things as receiving unstolen property when believing it to be stolen, shooting at a tree stump believing it’s a person, or offering a bribe to a “juror” who’s not really a juror.

In Virginia, attempt exists when the act attempted is not impossible, but this rule has reference to inherent impossibility, and not to cases where the impossibility has been brought about by outside interference, or grows out of extraneous facts not within the knowledge and control of the accused.

Of course, by carefully framing the case, pretty much every case of hybrid legal impossibility (a common-law defense) may be characterized as actually being one of factual impossibility, not a defense at all.

  • Rick

Here are the relevant statutes in Illinois:

The legislators in Illinois has determined that impossibility is NOT a defense in attempt cases, but is for conspiracy and solicitation charges. And, it, of course, remains a potential defense to a substantive charge. To flush out the difference, let’s look at the OP’s examples. The pickpocket, the decoy deer shooter, and the corpse-rekiller would all be able to raise a defense that they are not guilty of the substantiative offense (theft, shooting deer out of season, or murder) because they did not actually commit the crimes. However, if they are charged with attempted (theft, shooting deer out of season, or murder), they wouldn’t have an impossibility defense in Illinois. I have absolutely no problem with this, because the defendant’s state of mind is quite important in determining justice. Attempt is punished by one class lower than what the substantive charge is.

Now, I have a problem, based on Illinois law, with the OP, which attempts to muddy the issue by making it appear the poor wannabe child molester is being charged with having sex with a kid. If the defendant was charged with having sex with a child in the OP’s example, he would still have the same defense. The only problem is that in real life, that’s not what the wannabe child molester is charged with. He gets charged with solicitation of a minor. Now, before you say, well that’s impossible too, the statute for solicitation is:

So we have no problem with impossibility in this case either. Thank heavens for well-defined crimes and defenses.

My feelings regarding impossibility defenses can be illustrated with one more example. Some men have sex with a women who, they believed, was unconscious after she passed out after drinking heavily. In fact, she was dead. They get convicted of attempted rape, and the Military Court upholds their conviction and hold that “the possibility of adopting for the military an antiquated and discredited rule involving such nebulous distinctions as factual and legal impossibility.” Nor can we, the court said, espouse formulae for the solution of this question which have been universally condemned as unsound, unworkable, absurd, or nonsense. I’d also like to point out that the current trend in legal circles to extremely limit the defense of impossibility, which is, in my opinion, a good thing.

Cite? These people are commiting acts. As I said before, I don’t see the problem with charging someone who really wants to be a child molester, but couldn’t because of good police work.

Must every discussion of a criminal law issue devolve into legalization of drugs? Please.

Dr. Deth,

I was going to respond to your post, but I found the wild accusations of prosecutorial misconduct, and the lack of any cited material to not even merit a response.

Can you explain where a prosecutor who charges a person for committing a criminal act has too much discretion? I think you may be working under some misconceptions about the criminal justice system.

This is factually not true. The prosecutor has to prove the defendant had the intent to deliver the drugs beyond a reasonable doubt. The amount of drugs on a person (i/e more than a person could use in a month) is just one indication of that intent.

IANAL, but I think you could adopt a common sense definition that impossibility shouldn’t be allowed as a defense if the alleged perpetrator commited an action which would have been a crime if the information he believed was true was actually true.

This would cover all of the actions described in the OP. But it would not allow prosecution of other examples like possession of marijuana with implied intent to sell or sticking pins in a voodoo doll.

The thing is, a witch-doctor might very well believe, in good faith, that sticking pins in a voodoo doll would cause the death of the intended victim.

If impossibility were a defense cops could no longer perform all manner of sting operations regarding drugs and prostitution, no? Sounds like a good thing to me unless there are some drastic hidden costs I’m not accounting for.

Well, it depends on how much value you put on the different theories of criminal justice. If you think that that “retribution” is the most important aspect - i.e., punishing people for the harm they cause - then it is not as important to punish people for “attempt” crimes.

On the other hand, if you believe in general deterrence, specific deterrence, incapacitation, or rehabilitation, then it makes more sense to punish people for “attempts”

Bricker wrote, in the OP:

The Commonwealth’s?!?

What, Virginia is part of Canada now?

Now, now tracer

it’s of course, part of Puerto Rico :smiley:

It seems to me that if you’re going to allow the defense “well, I couldn’t have actually succeeded, so I’m not guilty”, then the courts are put in the position of ruling on to what extent the world is deterministic. If a man tries to steal some money, but is caught, does that mean that he was destined to be caught, and it was therefore impossible for him to steal the money? The courts should not be put in the position of having to answer these sorts of questions. If someone attempts to steal, then he is guilty of attempted theft.

A related question: suppose I put some expensive items in my pocket and walk out of the store without paying for them. I am arrested and charged with theft. I argue that since the whole purpose of theft is to gain permanent use of the goods, and since the items were taken from me when I was arrested, I was not successful in stealing the goods, and therefore I am guilty of at most attempted theft. Would this fly?