State v. Jack Sawyer
187 A. 3d 377, 2018 VT 43 (2018)
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Rule of Law:
Under Vermont law, a criminal attempt requires an overt act that moves beyond mere preparation and amounts to the commencement of the consummation of the crime. Acquiring materials, planning, and expressing intent to commit a crime are considered preparatory acts and are insufficient to constitute an attempt.
Facts:
- Jack Sawyer, a former student at Fair Haven Union High School (FHUHS), developed a plan to commit a mass shooting at the school.
- Sawyer purchased a shotgun in Vermont and possessed another that was modified with a shortened stock and barrel.
- He maintained a journal titled 'The Journal of an Active Shooter,' in which he detailed his plan, listed necessary supplies, and expressed his desire to kill as many people as possible.
- Sawyer sent Facebook messages to another student stating he was 'plotting on shooting up my old high school' and speaking approvingly of other school shootings.
- He planned to conduct surveillance on the School Resource Officer at FHUHS but had not yet done so.
- Sawyer researched the school calendar to select a date for the attack and attempted to buy a handgun on the dark web with Bitcoin, but was unsuccessful.
- When detained by police, Sawyer admitted he was still thinking about the shooting and detailed his plans, including his desire to exceed the death toll of the Virginia Tech shooting.
- A search of Sawyer's car revealed a shotgun, ammunition, his journal, and books about school shootings.
Procedural Posture:
- Jack Sawyer was charged in a Vermont trial court with four counts, including attempted aggravated murder and attempted first-degree murder.
- At his arraignment, the trial court ordered Sawyer held without bail pending a weight-of-the-evidence hearing.
- Following the hearing, the trial court found that the evidence of guilt was great and issued an order holding Sawyer without bail pursuant to 13 V.S.A. § 7553.
- Sawyer (appellant) filed an appeal of the trial court's hold-without-bail order directly to the Vermont Supreme Court.
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Issue:
Do a defendant's preparatory actions, including purchasing a weapon, detailing plans for a school shooting in a journal, researching the location, and communicating the intent to others, constitute a criminal 'attempt' under Vermont law, which requires an act that amounts to the 'commencement of the consummation' of the crime?
Opinions:
Majority - Per Curiam (Entry Order)
No. A defendant's preparatory actions do not constitute an 'attempt' under Vermont law because they do not advance beyond mere preparation to the 'commencement of the consummation' of the crime. The state's evidence showed that Sawyer engaged in planning, acquiring some materials, and expressing his intent, but he took no overt act that was so proximate to the commission of the shooting as to constitute the beginning of the crime itself. Relying on its long-standing precedent in State v. Hurley, the court distinguished between 'mere preparation'—such as devising plans or arranging the means to commit a crime—and an 'attempt,' which is the direct movement toward the commission after preparations are made. The court held that, similar to the defendant in Hurley who acquired hacksaws but had not yet begun to saw through the jail bars, Sawyer had acquired a weapon and made plans but had not put his design into execution. The court specifically rejected the Model Penal Code's more lenient 'substantial step' test, noting that Vermont's higher standard for attempt is tied to the fact that Vermont law does not permit an abandonment defense once an attempt has been committed.
Analysis:
This decision reaffirms Vermont's strict and traditional common law definition of criminal attempt, setting a high bar for prosecutors. It starkly contrasts with the more modern 'substantial step' approach of the Model Penal Code, which has been adopted by a majority of states and federal courts. By adhering to the 'commencement of the consummation' test from the 1906 Hurley case, the court signals that early law enforcement intervention based on planning and preparation alone may not lead to a successful attempt prosecution in Vermont. The ruling effectively places the onus on the legislature to amend the statutory definition of attempt if it wishes to criminalize conduct that falls short of a direct movement toward the final criminal act.
