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Abstract

While the Model Penal Code was certainly one of the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing “renunciation” as a defense 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, this Article unpacks proposed policy arguments both for and against the renunciation defense. This Article concludes that none of the ALI’s pragmatic justifications in support of the doctrine survive close scrutiny. Moreover, when considering the presence of social harm caused by an actor’s participation in a conspiracy—in contrast to the absence of harm with other inchoate offenses such as incomplete attempts—renunciation is theoretically inconsistent with the retributive aims of the criminal law. Renunciation should be best understood historically as a special form of legislative grace designed to counteract some of the harsher aspects of conspiracy law. This Article argues that states grappling with this issue should decline to recognize the renunciation defense and instead focus their attention on eliminating some of the more notable inequities of conspiracy liability.

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