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an important counterweight. Intentions are guides to future actions that do not prevent our later reconsideration. It follows that an actor has committed a culpable act only at the point where the actor has truly relinquished control, not at the point at which he forms the intention to unleash a risk in the future.

C. SUBSTANTIAL STEPS

For the reasons we reject treating intentions as culpable acts, we likewise reject the Model Penal Code’s substantial-step formulation.12 The Model Penal Code’s actus reus for an incomplete attempt is quite early in the process from intention to completion. It analyzes not how close to completion the actor is but whether the actor’s action corroborates his intention.

The “corroborative” function of the substantial-step test is critical. After all, it does not seem as though the mere looking at the bank floor plans or the buying of a gun is itself risk creating. It seems no more dangerous or culpable than the act of forming the intention itself. Indeed, the requirement of a “substantial step” looks arbitrary from the standpoint of assessing culpability. Consider Dan, who purchases a jackhammer with the intention of causing vibrations that will topple Balanced Rock and kill Victor if Victor walks under it. Arguably, Dan has undertaken a substantial-step attempt when he takes the jackhammer to a spot near Balanced Rock and waits to see if Victor walks under it. But is Dan different from Dana, who is picnicking near Balanced Rock, notices that she is next to a jackhammer, and forms the same intention that Dan has formed? Dana has done nothing other than form an intention. Yet she is in exactly the same position as Dan and just as culpable (or, we would argue, just as nonculpable). Would it matter that Dana, after forming the intention, moves an inch or two closer to the jackhammer?13

The justification for attempt liability for substantial steps must be grounded in the step’s ability to alleviate the concerns about punishment for intention formations themselves. In some ways, substantial

12Model Penal Code § 5.01(1)(c) (1985).

13Another consequence of having substantial-step attempts is that to motivate renuncia-

tion, one essentially has to deem the attempter guilty of a crime at T1 that disappears from the history books at T2, the time of the renunciation.

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steps do change the calculus. However, for the reasons we discuss later, we believe that substantial steps are not themselves culpable acts.

Substantial steps do speak to two concerns about punishment for intentions alone. First, the line-drawing concerns articulated by Dworkin and Blumenfeld have no purchase once we are talking about substantial steps. It is one thing for it to be difficult to distinguish the fantasy of killing one’s mother-in-law from the intention to do so. But the line between fantasy and purchasing a gun is far easier to draw.

Substantial steps also speak to the firmness of the actor’s resolve. We can tell the differences between our mere dreams (to become an accomplished pianist) and our goals (to lose weight) when we see that we sign up for gym membership but not piano lessons. A substantial step is thus evidentiary of the firmness of the actor’s resolve.

Still, two significant concerns exist even once the actor has taken a substantial step. The concern about conditional intentions and unforeseen future consequences still exists. First, the law treats, as it must, conditional intentions as intentions. But it does not stipulate any requisite level of probability that the actor must attribute to the condition’s obtaining. Thus, if David intends to kill Darlene if and only if she has been unfaithful – and David for that reason always carries a gun when he comes home from work – the law of inchoate criminality presumably deems his intention to kill sufficient whether he thinks Darlene’s infidelity highly likely or highly unlikely. (If a burglar enters a house intending to steal only diamond jewelry, is he not guilty of burglary if he believes the odds of the owner’s possessing diamonds are less than fifty percent? Twenty percent? One percent? If Thelma and Louise agree that they will kill their husbands if their lottery ticket wins the lottery, have they conspired to commit murder if the odds of their winning are one in a million?) Given that the probability of the conditions obtaining may be highly unlikely, the taking of a substantial step may not be very meaningful.

Moreover, it is immaterial whether the actor hopes the conditions on his intention will or will not obtain. David may hope that Darlene has not been unfaithful. But nonetheless, he still has the (conditional) intention to kill her.14

14One last point. Suppose David has a conditional intention, the condition of which negatives the criminal harm. Suppose he intends to have sex with Darlene only if Darlene is

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Related to the problem of conditional intentions is that of unknown future circumstances. (Recall Heidi and her plan to blow up the stadium.) Suppose Roger firmly intends to fire his gun at a tree at six o’clock Monday evening. And suppose Roger believes that at that time, several people will be in the vicinity of the tree and that, given the insubstantial weight of Roger’s reasons for firing at that time, his act will be reckless. But suppose as well that Roger believes there is some probability P that there will be no people in the vicinity at that time and that, in that event, his shooting will not be reckless. Should we conclude that Roger has an illicit intention now? If so, and he takes a substantial step toward acting on that intention – he loads the gun – should he now be guilty of a crime (taking a substantial step toward a culpable risk imposition)? The taking of a substantial step in no way remedies the problem that unforeseen circumstances will alter the culpability with which the actor ultimately acts. One avoids such puzzles if one abandons the idea of substantial-step attempts and uses the last act of unleashing the risk as the touchstone of culpability.

For us, the decisive objection is that actors can still change their minds, even after they have taken substantial steps. If actors have complete control over their future choices, then, no matter how firm their present resolve, they can always change their minds and refrain from

over the legal age. It appears that at this time, David’s intent is perfectly lawful. (See Model Penal Code § 2.02(6) (1985).) But if, “Have sex with Darlene if she is over the legal age” is the major premise of David’s practical syllogism, the minor premise might be “Darlene is (thankfully) over the legal age.” If so, then the conclusion David reaches is “Have sex with Darlene.” For inchoate criminality, which intention should control – the intent in the major premise, which is legal, or the intent in the conclusion, which, if David is in error regarding Darlene’s age, is illegal? Because David has not yet done what he intends to do, it is ambiguous whether he intends to have sex with Darlene (because he mistakenly believes she is over the legal age) or not to have sex with her (because he intends to have sex only if she is over the legal age).

(Of course, this problem only arises in connection with crimes that have strict liability elements or elements that require only the mens rea of negligence. And because we do not regard negligence as culpable – and strict liability is the antithesis of culpability – we would reject the very underpinnings of this problem.)

The problems of conditional intentions are sufficient to cause a complete rethinking of inchoate criminality – incomplete attempts, solicitation, conspiracy, and complicity. See generally Alexander and Kessler, supra note 1. Our approach here, which is to handle inchoate criminality under the rubric of recklessness, eliminates the problems of conditional intentions by eliminating the requirement that one intend criminal conduct. See infra notes 23–24.

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imposing the risk. Often, when in the future they become fully aware of the risks their act will impose, they will cease intending to impose it.

Some have argued that once the actor takes a step that is, for him, solely a means to his intended criminal act (and not a means to alternative ends), the actor is at that point in time “rationally committed” to accomplishing the intended criminal act and is under “rational pressure” to do so.15 Because it is always rational for one to refrain from acting criminally – at least in the absence of a justification – we fail to see how the notion of rational pressure can be cashed out. The idea that it is somehow incoherent to abandon bad ends that one has taken some step or steps to achieve smacks of recovering sunk costs. Some forms of coherent life narratives are more attractive than others, and there is nothing attractive, much less rational, about persisting in pursuing bad plans. In any event, the actor is always free to reconsider whether he will impose a risk of harm or proxy conduct no matter how many steps he has taken in that direction. Indeed, to the extent that more action creates more rational pressure to engage in the criminal conduct, the closer one comes to harming another, the more rational pressure the law places on the actor to rethink his criminal plan. So long as he has not taken the last step (he believes) necessary, he cannot be deemed culpable: he has not yet imposed any risk of harm.16

Can one not argue that one who takes a substantial step toward imposing a risk of harm (or proxy conduct) has acted recklessly because, for insufficient reason, he has increased the risk through making it

15See, e.g., Gideon Yaffe, “Trying, Acting and Attempted Crimes” (unpublished manuscript, on fi le with the authors). Yaffe does not require the step beyond intending to be a particularly important one for executing the intent. It only has to corroborate the actor’s intent. But because determining that it is such a step requires that we know the intent with which it was taken – was the purchase of the gun made for the intended killing or for marksmanship practice? – we must have independent evidence of intent. The step therefore adds nothing to an intent requirement. If one is “rationally committed” to an illicit end by taking a step in that direction, one is “rationally committed” to it by merely intending it.

16Daniel Ohana argues that the more costs the actor has sunk into her criminal plan, the more likely she is in fact to carry it out. Daniel Ohana, “Desert and Punishment for Acts Preparatory to the Commission of a Crime,” 20 Canad. J. Law & Jurisp. 113, 122–123 (2007). He concludes that the actor is culpable and hence deserving of punishment for having formed the plan and made some preparations for carrying it out. Id. at 124. Again, we disagree. The actor has still not unleashed an unjustified risk, given that, until she completes the last act necessary to execute her wrongful plan, she remains in complete control and can abandon it at any point, regardless of the costs she has sunk.