Thoughtcrime takes a step back

In an important decision out of the Seventh Circuit last week, "substantial step" was defined as more that just speech. In an opinion authored by Judge Posner, the Seventh Circuit overturned the conviction of a thirty-five year old man who solicited what he thought was a fourteen year old girl that turned out to be a federal agent. (See United States v. Gladish) Here is a highlight of the opinion, as quoted by Professor Berman's most awesome, Sentencing Law and Policy Blog

Although unrelated to sentencing, yesterday’s decision by Judge Richard Posner includes a noteworthy (and literary) discussion of what is required to convict an individual of criminal attempt...In classic Posner prose:

You are not punished just for saying that you want or even intend to kill someone, because most such talk doesn’t lead to action. You have to do something that makes it reasonably clear that had you not been interrupted or made a mistake—for example, the person you thought you were shooting was actually a clothier’s manikin—you would have completed the crime. That something marks you as genuinely dangerous—a doer and not just one of the ‘hollow men’ of T. S. Eliot’s poem, incapacitated from action because

Between the conception
And the creation
Between the emotion
And the response
Falls the Shadow

And later on in the opinion:

Treating speech (even obscene speech) as the ‘substantial step’ would abolish any requirement of a substantial step. It would imply that if X says to Y, ‘I’m planning to rob a bank,’ X has committed the crime of attempted bank robbery, even though X says such things often and never acts. The requirement of proving a substantial step serves to distinguish people who pose real threats from those who are all hot air; in the case of Gladish, hot air is all the record shows.

When working on an investigation, more than just talk is required for the government to establish a substantial step in a criminal attempt.