Responding to acts preparatory to the commission of a crime: Criminalization or prevention?

Abstract

Introduction When attending to the gathering threat of harm posed an actor who is laying the groundwork for the commission of an offense, the lawmaker has to determine the point--within the succession of stages along the criminal path--at which to impose liability and punishment. Under the Model Penal Code, liability for an attempt may attach to the performance of any ... constituting a in the course of the conduct planned to culminate in the commission of the crime, (1) provided it is strongly corroborative (2) of the actor's criminal purpose. Based on the illustrative guidelines set forth in the Code, a substantial step can encompass actions typically performed at the preparatory stage of the criminal pathway, such as reconnoitering the place contemplated for the commission of the crime and the collection or fabrication of materials to be employed in the implementation of the unlawful plan. (3) Other Common Law jurisdictions, such as the United Kingdom (4) and Canada, (5) take a more restrictive approach, limiting attempt liability to conduct that goes beyond preparation. (6) In these jurisdictions, acts of preparation may trigger liability only if they are prohibited as a specific offense. (7) For example, under English law, it is a crime to possess any article for use in the course of a burglary, theft, or cheat outside of one's place of residence. (8) Supporters of the criminalization of preparatory actions, whether they are viewed as attempts or as specific offenses, argue that criminalization allows for preventive intervention against the evolving menace presented an actor who is laying the groundwork for the commission of an offense. (9) Indeed, under current law, preventive measures (including, notably, pre-trial detention and the seizure of tools) are permitted with respect to an actor intent on committing a crime only when he has engaged in conduct that amounts to an offense. Otherwise, only questioning and a stop-and-frisk can be performed--provided that the police have a reasonable suspicion that criminal activity is afoot. (10) Thus, the commentary to the Model Penal Code's attempt rule argues that by broadening liability ... apprehension of dangerous persons will be facilitated and law enforcement officials and others will be able to stop the criminal effort at an earlier stage, thereby minimizing the risk of substantive harm, but without providing immunity for the offender. (11) Moreover, casting wide the net of attempt liability accords with the Code's stated general objective to subject to public control persons whose conduct indicates that they are disposed to commit crimes. (12) This essay seeks to challenge this syllogistic connection (13) between, on the one hand, the authorization of pre-emptive intervention and the protection of the public over the long run and, on the other, the criminalization of preparatory steps toward the commission of an offense. It is one thing to provide a legal basis for preventive measures to be taken vis-a-vis an actor who is intent on committing a crime; it is quite another to provide for the imposition of criminal liability and punishment--the strongest form of censure society can visit upon an offender, and which may result in a deprivation of liberty and property. (14) Such a strong punitive response should be reserved for exceptionally serious forms of preparatory conduct, (15) such as the making of radioactive material with the intention of preparing an act of terrorism, (16) the possession of devices with the intention to counterfeit currency, (17) or preparations to commit a crime of espionage. (18) But in most cases of preparation, the culpability of the actor and the threat posed his conduct to the legal interest concerned are not sufficiently intense to justify criminal punishment--even upon proof of a firm intention. Indeed, the formation of a firm intention does not exhaust the culpability of an actor who is setting the stage for the commission of an offense. …