Exercises: Impossibility

Impossibility is the label, very roughly, for when a person thinks they committed a crime but haven't. For example, imagine a person buys white powder believing it to be cocaine, but it is in fact baking soda. That person cannot be convicted of possession of a controlled substance, because the substance is baking soda.

But, perhaps oddly, the person can be convicted of attempted possession of a controlled substance. It is an attempt because the person did try to possess drugs, but failed. He failed not because he did not complete the conduct, but for another reason; nevertheless, he tried and failed to commit a crime. 

These cases are sometimes called "impossibility" cases. No matter how hard the defendant tries, it is impossible to complete the crime because an attendant circumstance isn't present.

For any given set of facts, the test works as follows. First, is it potentially an impossibilty case at all. That is, determine that the person is not guilty of the actual crime because some attendant circumstance is not true. The white powder is not a drug but baking soda. Second, consider the facts that the defendant believed to be true (but weren't). Under those set of facts, did he commit a crime? If so, he is guilty of an attempt of that crime. 

You should simply memorize the phrase, "under the facts as the defendant believed them to be." That phrase, from the Model Penal Code, will help you sort through these impossibility cases. 

Gladish, above, was an attempt case in two senses. First, it was an attempt case in that he never met or had sex with the supposed girl; the question was whether he took enough steps in that direction (with the intent to have sex with her) to count as an attempt. The Seventh Circuit held no, of course.

But the Gladish case is an attempt in a second sense: the girl was really an adult government agent. It was thus impossible for the defendant to complete the crime. But he could still be guilty of an attempt if, "under the facts as the defendant believed them to be," he would have been committing a crime. That part of the test was arguably met, though Gladish did not discuss it in any depth. The defendant appeared to believe the other person was a 14-year-old girl. (The court does, in fact, doubt even this fact in passing). 

Impossibility cases can be challenging. One can also confuse them with "mistake of fact" cases, or cases in which the defendant does not realize that a certain fact is true that does make him guilty of the actual offense (and not an attempt). If a person is selling drugs within 500 feet of a school, but thinks he's outside that distance, then this is not an impossibility case, but a mens rea case. The defendant lacks, or has, the mens rea with respect to distance. Try to understand the difference between the two categories of cases. 

Below are exercises to help make these principles more clear.