The question Kadish and Schulhofer seek to answer is “when is impossibility a defense?” This comes up for so-called attempts, meaning failed efforts to commit a crime such as murder, smuggling, and so on. Mere attempts are often treated as crimes in their own right, though they are frequently punished less harshly than successful attempts are. Some attempts fail because what is being attempted is impossible. The question at hand is “when does the impossibility of the attempted action amount to an excuse?”
Kadish and Schulhofer’s official answer is that what they call factual impossibility is not an excuse but that legal impossibility is. That is, someone whose attempt at committing a crime fails because she is mistaken about the facts will not be excused. Lady Eldon, for instance, is guilty of attempted smuggling, according to Kadish and Schulhofer, even though it was impossible for her to break the law, given that she actually had English lace and not the French stuff that she thought she had.
By contrast, someone whose attempt fails due to legal impossibility will be excused according to Kadish and Schulhofer’s standard. If I go dancing falsely thinking that it is illegal, I am not guilty of a criminal attempt. It is legally impossible for me to break the law by going dancing since the law says nothing about dancing.
Having made the case for drawing a distinction between factual and legal impossibility, Kadish and Schulhofer turn around and present an objection to that very distinction: the case of Mr. Fact and Mr. Law. The fact that they both defend the distinction and raise objections against it can be confusing on, say, an exam.
We went through Kadish and Schulhofer’s defense of punishing failed attempts pretty quickly. The three arguments they considered against punishing merely attempted crimes were not very compelling. The objective conception of intent is false: there is a difference between what you mean to do and what you actually do. The law takes intent and states of mind into account all the time. And it is at least possible to come up with excellent evidence of someone’s intent even with a failed attempt.
With the decks cleared for punishing mere, failed attempts, we moved on to Kadish and Schulhofer’s principle.
the innocuous character of the action actually done (innocuous in the sense that it could not constitute a crime under the actual circumstances) will not save her from an attempt conviction if she believed that the circumstances were otherwise, and, had her belief been correct, what she set out to do would constitute a crime. (Kadish and Schulhofer 1989, 672)
As they understand it, this principle draws a distinction between attempted crimes that fail due to factual impossibility (the gun wasn’t loaded but I thought it was) and legal impossibility (dancing isn’t illegal but I thought it was).
The idea is that in the case of legal impossibility there is no law that they might have broken. Assuming that we can only punish people for violations of the law, there’s no basis for punishment. Kadish and Schulhofer quote Glanville Williams as making the point.
“if the legislature has not seen fit to prohibit the consummated act, a mere approach to consummation should a fortori be guiltless. Any other view would offend against the principle of legality; in effect the law has left the situation outside the ambit of the law.” (Kadish and Schulhofer 1989, 673)
We talked about this point. Meghna pointed out that the way legal impossibility is presented might skew our thinking. The example of going dancing despite thinking that dancing is illegal involves behavior that is innocuous or even cute. If we had an example of behavior that is more sinister but based on a mistaken belief about the law, it might not be so easy to draw the conclusion that legal impossibility is exculpatory.
Ross defended the distinction between factual and legal impossibility. He thought that allowing convictions where the law has not prohibited the kind of action being attempted would raise problems similar to those we talked about when discussing judicial legislation. It would mean that you could be convicted of a crime even though the law did not make the behavior criminal when you did it. Caroline added that there is no crime of attempting to break the law while, say, attempted murder is definitely a crime.
However, Kadish and Schulhofer’s case of Mr. Law and Mr. Fact throws the distinction into question (see Kadish and Schulhofer 1989, 674). Mr. Law and Mr. Fact each wrongly believe they are breaking the law by going hunting on October 15. Mr. Law is wrong because he believes that the hunting season doesn’t start until the first of November when it actually began on the first of October. He is mistaken about the law. Mr. Fact is wrong because he looked at the wrong page on the calendar and believes it is September; he knows that hunting season begins on October 1 but is mistaken about the facts, such as the date. Drawing a distinction between them, such that Mr. Fact can be liable to criminal sanction while Mr. Law cannot, seems arbitrary.
It’s an interesting dispute and I myself don’t know exactly what I think.
Last year, I learned that Lady Eldon’s case is quite similar to Sponge Bob’s Free Balloon.
Also, we’re going to meet John Scott, First Lord of Eldon when we read Warren and Brandeis on privacy. The story of his marriage to Lady Eldon, née Elizabeth Surtees, is really something.
Scott’s intended course of life was now shattered by his falling headlong in love with Elizabeth (1754–1831), the sixteen-year-old daughter of a fellow townsman, Aubone Surtees, a wealthy banker. They met in church one Sunday at Sedgefield and in a short time the young couple were in love. The difficulty was that the Surtees family were socially a cut above the son of a keelman and public-house keeper with career prospects no better than those of a country clergyman. They had to meet in secret while she was out riding, and when her parents put pressure on her to marry a more suitable bridegroom they decided to elope. The plan was carried out in the classic manner—the bride-to-be descended into her lover’s arms down a ladder from a first-floor window of her parent’s house—and they fled to Scotland, where on 19 November 1772 they were married according to the rites of the Church of England at Blackshiels, on the road to Edinburgh, by the Revd John Buchanan, a minister of the Scottish Episcopal church at Haddington. On returning to Newcastle they were forgiven by Scott’s father, but it was some weeks before the Surtees family were reconciled. The marriage was then resolemnized two months later, on 19 January 1773, at St Nicholas’s Church, Newcastle, in the presence of the bride’s father, who settled the sum of £1000 on the happy pair. Scott senior settled £2000 on them. They then left for Oxford, where John was to prepare for a new career.
Kadish, Sanford H., and Stephen J. Schulhofer. 1989. “The Case of Lady Eldon’s French Lace.” In Criminal Law and Its Processes, 699–75. Boston: Little Brown and Company.