UCMJ Article 80: Attempts

Article 80, codified at 10 U.S.C. 880, is the attempt article of the Uniform Code of Military Justice. It reaches the service member who sets out to commit a crime under the code and takes real action toward it, but who is stopped, fails, or is interrupted before the crime is finished. Its central idea is that the criminal law does not wait for harm to occur once a person has formed a definite intent and moved beyond planning into conduct that would, if not interrupted, produce the offense. Because the article borrows its punishment from whatever crime was attempted, a single short provision operates across the entire code, attaching liability to attempted murder, attempted larceny, attempted desertion, and every other punitive offense alike.

What the government must prove

An attempt has four elements, and each must be proved beyond a reasonable doubt. The accused did a certain overt act; the act was done with the specific intent to commit a particular offense under the code; the act amounted to more than mere preparation; and the act apparently tended to bring about the commission of the intended offense.

The mental element is exacting. Article 80 is a specific-intent offense, which means the accused must have actually intended to commit the underlying crime, not merely to have acted recklessly or to have created a risk. A person cannot attempt a result he did not intend, so the prosecution must tie the conduct to a purpose to complete a specific, identifiable offense. The act itself usually supplies the proof of that purpose, because conduct that genuinely tends toward a crime ordinarily reveals the intent behind it.

The line between preparation and perpetration

The hardest question in most attempt cases is whether the accused crossed from preparation into perpetration. Buying a tool, traveling to a location, researching a method, or arranging the means is preparation, and preparation alone is not enough. The conduct becomes an attempt only when it amounts to more than mere preparation and constitutes a direct movement toward the commission of the crime after the preparations are complete.

Military courts have described the required conduct as a substantial step that strongly corroborates the criminal intent. The step must do more than show that the accused was thinking about the crime; it must demonstrate that the crime would take place unless interrupted by some independent circumstance. The line is admittedly difficult to draw, and it is drawn case by case from the totality of the circumstances rather than by any mechanical rule. Pointing a weapon at an intended victim, entering a building with the tools and intent to steal, or beginning the very conduct that would complete the offense all fall on the perpetration side; assembling the means and waiting does not.

Maximum punishment

Article 80 does not carry a fixed maximum of its own. A person found guilty of an attempt is generally subject to the same maximum punishment authorized for the offense attempted, because the law treats a determined and substantially executed attempt as nearly as serious as the completed crime. Two limits qualify that rule. In no case may the death penalty be adjudged for an attempt, even where the completed offense would authorize it. And confinement may not exceed twenty years except in three categories: attempted murder, attempted rape and sexual assault under Article 120, and attempted rape and sexual assault of a child under Article 120b, for which the borrowed maximum can run higher. For every other attempt, twenty years is the ceiling regardless of how severe the completed offense would be.

The relationship to mandatory minimums is narrower still. The mandatory minimum punishment provisions that attach to certain completed offenses generally do not carry over to an attempt, with a limited exception for attempts to commit rape and sexual assault under Article 120 and rape and sexual assault of a child under Article 120b. For offenses committed on or after 27 December 2023, a military judge imposes the sentence for non-capital offenses under the sentencing parameters and criteria of the current Manual, so the maximum borrowed from the underlying article is read together with those parameters at sentencing.

Defenses

Two defenses are distinctive to attempt law. The first is voluntary abandonment. A service member who completely and voluntarily renounces the criminal effort before the offense is completed may have a defense, but only if the abandonment reflects a genuine change of heart. Abandonment that is driven by fear of detection, by the unexpected arrival of another person, by the discovery that the crime has become harder or riskier, or by a decision to wait for a better opportunity is not voluntary and is no defense. The renunciation must be the accused’s own choice, made because the accused thought better of the crime, not because circumstances forced a retreat.

The second concerns impossibility. Factual impossibility is not a defense. A person who takes a substantial step toward a crime he intends to commit is guilty of the attempt even though completion was impossible for reasons he did not know, such as reaching into an empty pocket meaning to steal, firing at a target already dead, or trying to sell a substance that turns out not to be a controlled drug. Courts judge the accused on the facts as he believed them to be. So-called legal impossibility, where the conduct the accused set out to do would not be a crime even if fully carried out, is treated narrowly and rarely defeats a charge in practice. Beyond these, the ordinary defenses that would meet the underlying offense remain available, and any defense that negates the specific intent defeats the attempt because intent is an element the government must prove.

How it is charged and related offenses

Attempt and the completed offense do not both stand as separate convictions for the same act. If the evidence proves the finished crime, the accused is convicted of that crime, and the attempt is treated as a lesser offense included within it; a person is not separately punished for both attempting and completing the same conduct. The article expressly allows a conviction for an attempt even though the evidence at trial shows the offense was actually consummated, which lets a charge proceed on an attempt theory without failing merely because the proof turned out to establish more than an attempt.

Article 80 also sits alongside the other inchoate offenses but is distinct from them. Conspiracy under Article 81 punishes an agreement between two or more persons to commit an offense, together with an overt act in furtherance of it, and so reaches the planning stage that attempt does not. Solicitation under Article 82 punishes asking or advising another to commit an offense and is complete when the request is made, regardless of any step toward execution. Attempt, by contrast, requires the accused’s own conduct to move past preparation toward the crime. The same course of events can implicate more than one of these articles, and which charge fits depends on whether the gravamen is an agreement, an inducement of another, or the accused’s own substantial step toward completion.

Sources

• 10 U.S.C. 880, Article 80, Attempts: https://law.cornell.edu/uscode/text/10/880
• Manual for Courts-Martial, United States, Part IV (Punitive Articles), Article 80: https://jsc.defense.gov
• United States Court of Appeals for the Armed Forces, Daily Journal and opinions on Article 80: https://armfor.uscourts.gov

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.