When does preparation for committing a crime cross the line and become “attempt?” In an age of terrorism and mass shootings, many think not early enough. But depending on how your state defines “attempt,” if police prevent a known, planned atrocity, the criminal may go free.
The facts
Last month 18-year-old Jack Sawyer was released from custody and multiple charges of attempted murder and attempted assault against him were dismissed. The case began on February 14, 2018, the day of the Parkland school shooting, when an alarmed friend told officials that Sawyer posted on Facebook that he 100 percent supported the Parkland killings and was planning to shoot up his former high school. Police acted quickly and determined Sawyer had purchased a 12-gauge shotgun and four boxes of ammo the previous day.
In an interview with police on February 15:
- Sawyer said he was going to use the Columbine shooting as a “foundation” for his shooting. He also detailed what he would do differently from that shooting and said he planned on getting an AR-15 and 9 mm handgun.
- He acknowledged he purchased the shotgun for his shooting and chose the ammo based on what would cause the most casualties and injuries.
- He insisted he would’ve carried out his plan if police hadn’t arrested him. He’d originally considered April 20, the anniversary of Columbine, but he’d researched the school calendar and determined it was closed for spring break at that time.
- He discussed the importance of planning so he could achieve the highest body count of any school shooting. He explained how he was going to surveille school resource officer Scott Alkinburgh to determine when he might be out of the building. If he couldn’t find a pattern, he planned to walk past Alkinburgh’s office, double back, and shoot him first in the head with the 9 mm since the officer was the only one who could stop him.
- He advised he’d been keeping a journal about his plans so police would have it to look back on after he killed himself at the end of his shooting. He also insisted this intervention with police would only delay his plan – he would eventually carry it out.
- In Sawyer’s journal – titled “Journal of an Active Shooter” – he kept expense lists for items that included a 9 mm Glock, ammo for the shotgun and an AR-15, and a tactical vest. He described how much he disliked people at the school and that he was moving the date of the shooting up before kids he’d gone to school with would graduate. He detailed buying $500 of bitcoin to purchase a Glock on the darknet and wrote he’d considered explosives as well, but dropped the idea since he didn’t have any place to practice with them.
So how did Sawyer end up back in the community he’d threatened, which is dealing with the aftermath of its fear and scrambling to ensure its safety?
The legal issue
Sawyer’s public defender argued that Sawyer’s conduct didn’t constitute an “attempt.” Under Vermont law, an “attempt” requires an intent to commit a crime coupled with an act that, but for being interrupted or prevented, would result in the commission of the crime.
The result
Based largely on a court decision interpreting Vermont’s attempt statute over a century ago, the state Supreme Court concluded Sawyer’s conduct was “mere preparation,” not acts “undertaken in the attempt to commit a crime.” The felony charges on which Sawyer was being held without bail had to be dismissed and he was released into his father’s custody. It’s questionable whether two remaining misdemeanor charges will survive a motion to dismiss.
Sawyer did have to give up his weapons under an “extreme risk protection law,” which the legislature hastily passed in anticipation of his release; but that’s only good for 15 days and a possible six-month extension. In his interview with police, Sawyer said he was patient – he’d wait up to 10 years, if needed, to execute his plan.
The Court said it was confined to the interpretation and application of a law passed over a century ago and a 100-year-old court decision interpreting that statute – neither of which could have envisioned the current state of terrorism and mass shootings police and their communities now face. In an unusual move, it added,
“The Legislature can, if it chooses, deviate from this long-established standard by passing a law revising the definition of attempt.”
Vermont’s legislature is trying to do just that, as well as pass a domestic terrorism law that would encompass conduct like Sawyer’s.
The ongoing problem
New laws can’t be applied retroactively to Sawyer. In the meantime, local people are frustrated, angry and scared. Police and the school district have extended additional resources to ensure school safety.
The situation in Vermont must be a wakeup call for police, prosecutors, community members and legislators. Attempt statutes vary across the country. State legislatures, court decisions and legal scholars have struggled for a precise, workable line of when planning and preparation constitute a criminal attempt – with differing results.
The Model Penal Code (MPC), a project of the American Law Institute designed to help state legislatures update and standardize U.S. penal law, was published in 1962. The MPC’s definition of attempt includes,
When a person purposely does anything that, under the circumstances as he believes them to be, constitutes a “substantial step” in a course of conduct planned to culminate in his commission of the crime.
The MPC version doesn’t require an interruption or prevention by outside forces. It focuses on the offender’s intent and whether he took substantial steps to accomplish that intent. Professor Wayne LaFave’s second edition of “Substantive Criminal Law” noted that 22 states and all 12 federal circuits have adopted the MPC’s substantial step test. That leaves the other states with varied definitions of attempt.
What is the solution?
I don’t see a law enforcement solution. As the Vermont prosecutor asserted, under the defense’s argument, the police should’ve released Sawyer after the interview and review of his journal and waited until he showed up at the school – at which time they’d be facing a heavily armed, would-be mass murderer.
The solution will have to be legislative. In the meantime, police, prosecutors, community members and legislators must be mindful of their attempt statutes and, if needed, pass laws that address present day threats that were unimaginable a century ago. Vermont’s efforts at new attempt and domestic terrorism statutes offer a starting point.
