HRS § 705-530 - Renunciation of attempt, solicitation, or conspiracy; affirmative defense

PART IV. GENERAL PROVISIONS RELATING TO INCHOATE OFFENSES (1) In a prosecution for criminal attempt, it is an affirmative defense that the defendant, under circumstances manifesting a voluntary and complete renunciation of the defendant's criminal intent, gave timely warning to law-enforcement authorities or otherwise made a reasonable effort to prevent the conduct or result which is the object of the attempt. (2) In a prosecution for criminal solicitation, it is an affirmative defense that the defendant, under circumstances manifesting a complete and voluntary renunciation of the defendant's criminal intent: (a) First notified the person solicited of the defendant's renunciation[;] (b) Gave timely warning to law-enforcement authorities or otherwise made a reasonable effort to prevent the conduct or result solicited. (3) In a prosecution for criminal conspiracy, it is an affirmative defense that the defendant, under circumstances manifesting a voluntary and complete renunciation of the defendant's criminal intent, gave timely warning to law-enforcement authorities or otherwise made a reasonable effort to prevent the conduct or result which is the object of the conspiracy. (4) A renunciation is not "voluntary and complete" within the meaning of this section if it is motivated in whole or in part by: (a) A belief that circumstances exist which increase the probability of detection or apprehension of the accused or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose; or (b) A decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective. (5) A warning to law-enforcement authorities is not "timely" within the meaning of this section unless the authorities, reasonably acting upon the warning, would have the opportunity to prevent the conduct or result. An effort is not "reasonable" within the meaning of this section unless the defendant, under reasonably foreseeable circumstances, would have prevented the conduct or result. [L 1972, c 9, pt of §1; gen ch 1993] COMMENTARY ON Modern penal theory recognizes two basic reasons for allowing renunciation as an affirmative defense to inchoate crimes. First, renunciation indicates a lack of firmness of that purpose which evidences criminal dangerousness. The same rationale underlies the reluctance to make merely "preparatory" activity a basis for liability in criminal attempt: the criminal law does not seek to condemn where there is an insufficient showing that the defendant has a firm purpose to bring about the conduct or result which the penal law seeks to prevent. Where the defendant has performed acts which indicate, prima facie, sufficient firmness of purpose, the defendant should be allowed to rebut the inference to be drawn from such acts by showing that the defendant has plainly demonstrated the defendant's lack of firm purpose by completely renouncing the defendant's purpose to bring about the conduct or result which the law seeks to prevent.[1] Second, it is thought that the law should provide a means for encouraging persons to abandon courses of criminal activity which they have already undertaken. In the very cases where the first reason becomes weakest, this second reason shows its greatest strength. That is, in the penultimate stage, where purpose is most likely to be firmly set, any inducement to desist achieves its greatest value.[2] Renunciation in all three inchoate situations requires that the defendant either give timely warning to the police, or make a reasonable effort to prevent the culmination of the crime. If the warning to the police is timely, as defined in subsection (5), this alone is sufficient to establish the defense, and no further effort, reasonable or otherwise, is required of the defendant. It is assumed that the police make reasonable efforts in this regard; and when they do not do so, it makes little sense to punish one who so relies upon them. Where the police have not been warned, efforts at prevention must be reasonable, in the sense of substantial, as well as timely. As reasonable is defined, it must be sufficient under all foreseeable circumstances to prevent the offense. Only where the prevention is thwarted by circumstances which are not reasonably foreseeable does the Code allow the defense of renunciation. Thus unless such unforeseeable circumstances occur, the substantive offense will always be prevented. When the defendant has been able to prevent the occurrence of the substantive evil, the defendant has counterbalanced the danger to society which the defendant's actions presented. In terms of the foregoing rationales of renunciation, the defendant has evidenced a sufficient lack of firmness in the defendant's criminal purpose that liability ought not to apply, and the law has perhaps succeeded in encouraging the defendant to abandon the defendant's criminal activities. It would not be reasonable to hold the defendant strictly liable for the defendant's inchoate activities by imposing liability where unforeseeable circumstances thwart prevention of the substantive offense. If the defendant's renunciation is effective but for circumstances not reasonably foreseeable, that is all that may be asked. Moreover, to impose strict criminal liability in such situations would be to ignore the rationales for allowing the defense of renunciation. If the defendant's renunciation is effective under all foreseeable circumstances, the defendant has evidenced a sufficient lack of firmness in the defendant's criminal purpose, and the law has succeeded as far as is rationally possible in encouraging the defendant to abandon such purpose. In the solicitation situation, it is recognized that there is a further important need to ensure that the person solicited is aware of the renunciation. The requirement of reasonable effort as it is used in the Code, probably would require such notification in almost all cases, but the obvious and necessary nature of such notification has led to the insertion of this special requirement in other codes.[3] Moreover, a person who seeks to withdraw and notifies the police without also notifying the person solicited, acts in a sense as the "entrapper" of the solicited person. The requirement and definition of voluntary and complete renunciation are principally to ensure the good faith of the defendant in abandoning the defendant's criminal purpose. As defined, the renunciation must be such that it indicates that the defendant no longer represents a substantial danger to society. Hawaii has previously not developed statutory or common-law doctrine of renunciation in the inchoate area. This section of the Code represents a valuable addition to Hawaii law in this area. __________ Commentary: 1. M.P.C., Tentative Draft No. 10, comments at 72 (1960). 2. Id. 3. Prop. Mich. Rev. Cr. Code §1010(2); see also M.P.C. §5.02(3), where notification is an alternative method of prevention.