Decoding the Impossibility Defense

21 Pages Posted: 21 Nov 2017 Last revised: 22 Jun 2018

Date Written: November 30, 2016

Abstract

Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated over 3000 criminal cases as on point, 1200 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation.

Although it is now hornbook that impossible attempts are punishable as crimes, there remains a sense of a non-trivial difference between failing at larceny by picking the empty pocket of a passerby on a sidewalk and by picking the empty pocket of a mannequin in a department store. What remains up in the air is what accounts for that difference. Here I decode the impossibility defense by “hounding down the minutiae” of what it means to make a mistake. I am certainly not the first to insist that the impossibility defense lives on. I am, however, the first to base such a claim on the grammar or criteria of mistakes, which can get us closer to the bottom of what makes attempts impossible and why it matters.

Keywords: criminal law, attempt, inchoate, impossibility, mistake of fact, mistake of law

JEL Classification: K10, K14

Suggested Citation

Yeager, Daniel B., Decoding the Impossibility Defense (November 30, 2016). University of Louisville Law Review, Forthcoming, California Western School of Law Research Paper No. 17-21, Available at SSRN: https://ssrn.com/abstract=3073211

Daniel B. Yeager (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States
619-525-1456 (Phone)
619-696-9999 (Fax)

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