II

106TH CONGRESS

1ST SESSION S. 413

To amend title 18, United States Code, to insert a general provision for

criminal attempt.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 11, 1999

Mr. DEWINE introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To amend title 18, United States Code, to insert a general

provision for criminal attempt.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. ESTABLISHMENT OF GENERAL ATTEMPT OF4 FENSE.

5 Chapter 19 of title 18, United States Code, is

6 amended—

7 (1) in the chapter heading, by striking ‘‘Con8 spiracy’’ and inserting ‘‘Inchoate offenses’’; and

9 (2) by adding at the end the following:
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1 ‘‘§ 374. Attempt to commit offense

2 ‘‘(a) IN GENERAL.—Whoever, acting with the state

3 of mind otherwise required for the commission of an of4 fense described in this title, intentionally engages in con5 duct that, in fact, constitutes a substantial step toward

6 the commission of the offense, is guilty of an attempt and

7 is subject to the same penalties as those prescribed for

8 the offense, the commission of which was the object of the

9 attempt, except that the penalty of death shall not be im10 posed.

11 ‘‘(b) INABILITY TO COMMIT OFFENSE; COMPLETION

12 OF OFFENSE.—It is not a defense to a prosecution under

13 this section—

14 ‘‘(1) that it was factually impossible for the

15 actor to commit the offense, if the offense could

16 have been committed had the circumstances been as

17 the actor believed them to be; or

18 ‘‘(2) that the offense attempted was completed.

19 ‘‘(c) EXCEPTIONS.—This section does not apply—

20 ‘‘(1) to an offense consisting of conspiracy, at21 tempt, endeavor, or solicitation;

22 ‘‘(2) to an offense consisting of an omission, re23 fusal, failure of refraining to act;

24 ‘‘(3) to an offense involving negligent conduct;

25 or
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1 ‘‘(4) to an offense described in section 1118,

2 1120, 1121, or 1153 of this title.

3 ‘‘(d) AFFIRMATIVE DEFENSE.—

4 ‘‘(1) IN GENERAL.—It is an affirmative defense

5 to a prosecution under this section, on which the de6 fendant bears the burden of persuasion by a prepon7 derance of the evidence, that, under circumstances

8 manifesting a voluntary and complete renunciation

9 of criminal intent, the defendant prevented the com10 mission of the offense.

11 ‘‘(2) DEFINITION.—For purposes of this sub12 section, a renunciation is not ‘voluntary and com13 plete’ if it is motivated in whole or in part by cir14 cumstances that increase the probability of detection

15 or apprehension or that make it more difficult to ac16 complish the offense, or by a decision to postpone

17 the offense until a more advantageous time or to

18 transfer the criminal effort to a similar objective or

19 victim.’’.

20 (b) TECHNICAL AND CONFORMING AMENDMENT.—

21 The analysis for chapter 19 of title 18, United States

22 Code, is amended by adding at the end the following:

‘‘374. Attempt to commit offense.’’.
4

•S 413 IS

1 SEC. 2. RATIONALIZATION OF CONSPIRACY PENALTY AND

2 CREATION OF RENUNCIATION DEFENSE.

3 Section 371 of title 18, United States Code, is

4 amended—

5 (1) by striking the second undesignated para6 graph; and

7 (2) in the first undesignated paragraph—

8 (A) by striking ‘‘If two or more’’ and in9 serting the following:

10 ‘‘(a) IN GENERAL.—If 2 or more’’; and

11 (B) by striking ‘‘either to commit any of12 fense against the United States, or’’; and

13 (3) by adding at the end the following:

14 ‘‘(b) CONSPIRACY.—If 2 or more persons conspire to

15 commit any offense against the United States, and 1 or

16 more of such persons do any act to effect the object of

17 the conspiracy, each shall be subject to the same penalties

18 as those prescribed for the most serious offense, the com19 mission of which was the object of the conspiracy, except

20 that the penalty of death shall not be imposed.’’.

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