A Constitutional Minimum Threshold for the Actus Reus of Crime? MPC Attempts and Material Support Offenses

Abstract

Material support crimes combined with the modern law of attempted offenses have the capability to magnify significantly the ability of the government to prosecute inchoate criminal activity. Examination of attempts to commit federal material support/terrorism offenses (with Model Penal Code attempts law being applied by the federal courts) can help us to understand how this potent combination of bases for inchoate criminal liability is being used in the legal arena of anti-terrorism enforcement.

It also lays the foundation for addressing a basic question of constitutional law and theory--whether this kind of combined inchoateness could involve a breach of constitutional norms. Stated another way, is there a minimum constitutional threshold of actus reus conduct for inchoate crime? Does the fact that the crimes here at issue involve terrorism need to be taken into account in applying a constitutional calculus? Would it be a matter of concern were a similar basis for criminal liability extended to ordinary crime—that is, outside the arena of terrorism or other special crime categories? This paper addresses and tries to answer such questions.

Keywords: inchoate crimes, attempts, material support crimes, terrorism, actus reus, constitutional threshold