Whether Massachusetts should adopt renunciation as a defense to conspiracy, as permitted by the Model Penal Code.

The defendant and three other high school students formed a plan to conduct a massacre at their high school. The defendant argued at trial that he never had any intent to carry out the plan, and did not take it seriously. Some months later, the defendant and two of the other students went to the police and reported the plan, concerned that the fourth accomplice was seeking weapons and may become violent.

The defendant was charged with and convicted of conspiracy to commit murder, on the basis of the plan to attack his school. The judge refused to consider the affirmative defense of renunciation, based on the defendant’s voluntary reporting of the conspiracy to the police. The defendant appealed.

Massachusetts has so far followed the traditional rule that the crime of conspiracy is complete when conspirators agree to commit a crime, and so “no subsequent action can exonerate the conspirator of that crime.” See Commonwealth v. Nighelli, 13 Mass. App. Ct. 590, 596 (1982). 

The Model Penal Code (“MPC”), Section 5.03(6), created an affirmative defense that “the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” The defendant argues that the Court should adopt this defense. See, e.g., Commonwealth v. McHoul, 352 Mass. 544, 547 (1967) (adopting MPC definition of “criminal responsibility” as an “evolutionary restatement” of current law); Commonwealth v. Klein, 372 Mass. 823, 830-831 (1977) (adopting MPC as to use of deadly force to protect property). The defendant cites fourteen states that adopted the renunciation defense by statute in the 1970s and 1980s, shortly after the MPC was published. An omnibus crime bill that would have adopted the renunciation defense in Massachusetts was rejected in 1972 without substantial debate.

The defendant further argues that, if the Court rules that the renunciation defense is unavailable, the ruling should not be applied to him under due process principles of fairness, because the law is currently unclear. He also argues that there was insufficient evidence of actual intent on his part to commit the crime.

The defendant’s most plausible path to success is to persuade the Court to adopt the MPC defense of renunciation. There are good reasons to adopt such a defense, as shown by the fourteen states that have chosen to do so by statute. However, the elements of conspiracy are fully satisfied in Massachusetts once an agreement is made; the defendant’s proposal therefore amounts to a new affirmative defense constructed of whole cloth, rather than an evolutionary interpretation of common law. It is not clear that the Court will have the stomach for such an endeavor, and the defendant does not cite to any other courts that have done what he requests.