Note on Mens Rea for Attempt

Smallwood states the traditional, near universal, rule of mens rea for attempt. A true intent (what the MPC would call purpose) is required even when some lesser mens rea would suffice for the completed crime. So, for example, if one of the women that Smallwood assaulted had contracted HIV and died of AIDS (which was an invariably fatal disease at the time), he would certainly have a sufficiently culpable mental state to convict him of murder. (Can you make that argument?) But because the court concluded that there was insufficient evidence to demonstrate that he intended to cause his victims' deaths, it reversed his conviction of attempted murder. (Do you agree that there was insufficient evidence on that point?)

The Colorado case makes clear that a different rule applies in this state, and probably only in this state. In Colorado, all that is required is that the defendant act with the mens rea of the completed offense and satisfy the actus reus for attempt to commit that crime; it is not necessary to show that the defendant intended to achieve the prohibited result. Attempted reckless homicide is an idea that seems to make no sense. As Professor Joshua Dressler has pointed out: "It is illogical to say that a person can intentionally commit an unintentional crime.” But under Colorado law this is exactly what the law permits.

There are limits to this doctrine, however. For example, in People v. Griego, 409 P.3d 338 (2018) the defendant, who had multiple DUIs to his name, was once again arrested for driving while drunk and charged with “recklessly attempt[ing] to cause the death of any and all members of the public in his vicinity”. The Colorado Supreme Court rejected this reading of the statute, pointing out that the state was unable to point to any case that "involved a risk to the public at large, rather than to a discernible victim." The Court concluded that if this kind of broad risk creation sufficed to constitute an attempt "no coherent distinction would remain between the type of act that would qualify as reckless driving, a class two misdemeanor, and the offenses at issue here." Do you see why?

The Colorado courts have also rejected the crime of attempted negligent homicide. See People v. Eggert, 923 P.2d 230 (1995) ("the existence of recklessness ... justifies imposition of criminal attempt liability but the existence of mere negligence does not"). But why should this be true?