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

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