« Eighth Circuit Upholds Constitutionality of the Sex Offender Registration and Notification Act | Main | Ninth Circuit Holds Lenient Sentence Does Not Rise to Abuse of Discretion »

August 1, 2008

Judge Posner on the “Substantial Step” Requirement of Criminal Attempt

Although unrelated to sentencing, yesterday’s decision by Judge Richard Posner includes a noteworthy (and literary) discussion of what is required to convict an individual of criminal attempt.  In United States v. Gladish, the Seventh Circuit overturned the conviction of a 35-year-old man caught trying to solicit sexually a “14-year-old girl” (who was actually a government agent), but who never moved beyond speaking to the “minor” over the Internet.  In classic Posner prose:

You are not punished just for saying that you want or even intend to kill someone, because most such talk doesn’t lead to action. You have to do something that makes it reasonably clear that had you not been interrupted or made a mistake—for example, the person you thought you were shooting was actually a clothier’s manikin—you would have completed the crime. That something marks you as genuinely dangerous—a doer and not just one of the ‘hollow men’ of T. S. Eliot’s poem, incapacitated from action because

Between the conception

And the creation

Between the emotion

And the response

Falls the Shadow.

And later on in the opinion:

Treating speech (even obscene speech) as the ‘substantial step’ would abolish any requirement of a substantial step. It would imply that if X says to Y, ‘I’m planning to rob a bank,’ X has committed the crime of attempted bank robbery, even though X says such things often and never acts. The requirement of proving a substantial step serves to distinguish people who pose real threats from those who are all hot air; in the case of Gladish, hot air is all the record shows.

Download UnitedStatesvGladish.pdf

Guest bloggers

August 1, 2008 at 07:34 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200e553c903478833

Listed below are links to weblogs that reference Judge Posner on the “Substantial Step” Requirement of Criminal Attempt:

» CA7: Posner discusses “substantial step,” the “psychology of intent” and intent to have sex with an internet minor from Appellate Law
SLP's special guest-bloggers point to US v. Gladish. For many people that practice criminal law, the scenario is sort of normal. Some guy gets on the internet and starts chatting with a cop. Only the cop claims to be a [Read More]

Tracked on Aug 4, 2008 12:10:44 PM

Comments

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB