From Attempt to Acquittal: A Case for Abandonment as an Affirmative Defense

The exculpatory effect of abandonment defenses is intuitively puzzling. Why should your abandonment at t2 render you nonculpable for your attempt at t1? Following this intuition, Gideon Yaffe (2014) argues that, rather than exculpating at trial, abandonment should mitigate at sentencing when and because the defendant’s reasons for abandoning are insensitive to changes in their prospective punishment. Against Yaffe, I argue criminality-relevant abandonments are those where the defendant abandons because (a) they feel sorry to their victim for what they have done or (b) they underwent a change in their moral judgments. Such defendants can be trusted not to reattempt and are therefore not appropriate subjects of incarceration’s incapacitating function. This Model Penal Code-inspired dangerousness rationale makes sense of abandonment as an affirmative defense because incarceration is central to our punishment system. A guilty verdict is a claim that a person ought to be incapacitated, since we punish defendants by imprisoning them. Because abandoners ought not be incapacitated, they ought not be found guilty, which is just to say that their abandonment ought to function as an affirmative defense. There is a revisionary upshot—namely, reason for thinking remorse should sometimes acquit defendants of completed crimes.