The Model Penal Code’s Wrong Turn: Renunciation as a Defense to Criminal Conspiracy

Abstract

While the Model Penal Code was certainly one the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing a defense of “renunciation” to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows the agreement and thwarts its objective (for example, by notifying authorities of the planned crime in order to prevent its completion) is afforded a complete defense to conspiracy liability. This defense has enormous implications for crimes involving national security and terrorism, which are typically planned covertly and involve extensive coordination among multiple actors.

Many states follow the Model Penal Code approach and recognize the renunciation defense, without defining its precise contours or limits. Other states are still struggling with the issue, and have yet to accept or reject the renunciation doctrine. After surveying state and federal law across the United States, the authors unpack proposed policy arguments for and against the renunciation defense. The authors conclude that none of the pragmatic justifications advanced by the ALI in support of the doctrine survive close scrutiny. Moreover, renunciation is theoretically inconsistent with the social harm caused by an actor’s participation in a conspiracy, in contrast to the absence of harm present with other inchoate offenses such as incomplete attempts. In the authors’ view, renunciation is best understood historically as a special form of legislative grace designed to counteract some of the harsher aspects of conspiracy law. The authors argue that states grappling with this issue should decline to recognize a renunciation defense, and instead focus their attention on eliminating some of the more notable inequities of conspiracy liability.