Guilty Minds: When preparation becomes perpetration

A Vermont teenager was arrested and charged with serious felonies after planning a mass shooting at his high school. But when does mere preparation turn into perpetration?

Photo: Burlington Free Press, Courtesy of Google Images

Eighteen-year-old Jack Sawyer was arrested after being accused of planning a mass shooting at his former high school in Fair Haven, Vermont on February 15, one day after the shooting in Parkland, Florida.  As a result of the arrest, Sawyer picked up multiple felony charges including attempted first-degree murder, attempted aggravated murder, and attempted assault with a deadly weapon.  The potential punishment for these crimes includes a life sentence without possibility of parole.  According to a recent report by National Public Radio, “[t]he case has fascinated legal experts who say it is forcing Vermont to grapple with the difficult issue of when intent to do something becomes an actual crime.”

The factual basis of the prosecutor’s case include the following allegations: that Sawyer “sent Facebook messages to a friend saying he approved of the [Parkland] shooting and was planning to shoot up his own former high school”; posted on social media “under the pseudonym Klebold – a reference to Dylan Klebold, one of the shooters in the deadly 1999 Columbine school shooting”; “moved back to Vermont from a school for troubled teens in Maine”; and “bought a shotgun and ammunition, allegedly, to carry out his plan.”

In an interview with police, Sawyer admitted that when he left his high school, he had “planned to commit a mass shooting at the school”, was “still thinking about it a week or two prior to the interview,” and discussed “school shootings a day or two earlier in Facebook messages.”  Sawyer also explained to police that he planned to “conclude any shooting in the school’s library in mimicry of the Columbine shooting”, “wanted to exceed the body count from the Virginia Tech shooting”, and that he “wanted to commit a mass shooting on the anniversary date of the Columbine school shooting.”

After Sawyer was detained, police searched his car, finding a shotgun, 17 rounds of ammunition, four books related to school shootings, including the Columbine massacre, as well as his own journal labeled, “The Journal of an Active Shooter,” which included detailed descriptions of the defendant’s plans to commit a mass shooting at the high school.

Generally, mere preparation to commit a crime is not enough to secure a conviction for attempt.

In order to successfully convict someone of a crime, generally, there must exist both an actus reus (a voluntary act), as well as mens rea (a culpable mental state), as well as a temporal concurrence between the two.  Attempt crimes are slightly different, as the criminal act has not been completed, but the defendant must have had the requisite mental state to carry out the act.  The basic elements of an attempt crime are: (1) an act towards the commission of a crime; (2) intent to do the act; and (3) the specific intent to accomplish the crime.  Generally, mere preparation to commit a crime is not enough to secure a conviction for attempt and in Vermont, the defendant must have possessed “an intent to commit a crime, coupled with an act that, but for an interruption, would result in the completion of a crime.”

In response to the pending charges, Sawyer has entered a plea of not guilty.  At his initial court appearance last month, the Superior Court Judge Thomas Zonay, ruled that “Sawyer’s words and actions went beyond mere preparation and warranted continued incarceration without bail.”  Accordingly, Judge Zonay signed an extreme risk protection order, an order afforded under the package of new gun control laws signed by the Vermont governor the day before Sawyer was arrested.  This order permits the state to hold Sawyer without bail pending trial.

Sawyer was held without bail under 13 V.S.A. § 7553, “which implements the Vermont Constitution’s presumption that a person shall be released on bail, unless the person is charged with ‘an offense punishable by death or life imprisonment…when the evidence of guilt is great.”  The Vermont Supreme Court explained that “a defendant may be held without bail under § 7553 when two requirements are met: (1) the defendant is charged with a crime carrying a potential sentence of life imprisonment, and (2) the State can present evidence that, ‘taken in the light most favorable to the State and excluding modifying evidence, can fairly and reasonably show defendant guilty beyond a reasonable doubt.’”

Sawyer’s defense attorney, Kelly Green, appealed Judge Zonay’s decision to the Supreme Court of Vermont.  The question before the state supreme court was “whether the evidence of guilt is great that defendant attempted to commit any of the four charged crimes given the definition of ‘attempt’ under Vermont law.”  The court answered that question stating, “[w]e hold that the weight of the evidence is not great that defendant has committed any act or combination of acts that would satisfy Vermont’s definition of an attempt to commit any of the charged crimes.”  The decision of Judge Zonay to grant the hold-without-bail order was accordingly reversed and the case remanded to the superior court for further proceedings.

In reaching this conclusion, the court relied on State v. Hurley.  The Hurley case established the proximity test for attempt charges in Vermont, which measures the defendant’s “physical proximity to the location of the intended crime, or the temporal or kinetic proximity of the act to completion of the intended crime.”  Under this analysis, the court concluded that Sawyer “took no action so proximate to the commission of the school shooting as to constitute an attempt,” viewing Sawyer’s actions as merely preparatory acts.

The main concern on the side of the defendant are that the government will have the ability to prosecute citizens for their thoughts, rather than solely their actions.

The charges facing Jack Sawyer have sparked a debate among lawyers and lawmakers concerning the line between intent and criminal activity.  The main concern on the side of the defendant are that the government will have the ability to prosecute citizens for their thoughts, rather than solely their actions.  As Vermont Defender General Matthew Valerio stated, “I can sit around all day with a list of the people I don’t like and talk about the ways I’d like to hurt them and what I’d do if I had the chance, but that’s not a crime that’s fantasy.”  Valerio believes that there was “likely not even a crime here.”

On the other side of the debate, the Rutland County State’s Attorney Rose Kennedy who is prosecuting Sawyer’s case “argued in court that had the state waited until Sawyer showed up at the school and began shooting, people would have died.”  This view has popular support in light of the building frustrations and fears surrounding recent school shootings.

Somewhere between these two arguments lies a solution to cases such as Sawyer’s, one which the Vermont Supreme Court believes can be best implemented through the political process.  The court wrote, “[t]he Legislature is tasked with enacting such laws as the people of Vermont think necessary.  This court is bound to apply the law in agreement with statute and this Court’s own earlier decisions.  The Legislature can, if it chooses, deviate from this long-established standard by passing a law revising the definition of attempt.”  Vermont defense attorney Dan Sedon “believes that’s exactly what lawmakers need to do so the courts have another option, a charge that would fall between disorderly conduct and attempted murder.”  Among other states, Minnesota and New Jersey have enacted such laws involving terroristic threats.

Sawyer is still being held without bail and no bail hearing has been scheduled.  His case is scheduled for a merit hearing in Superior Court on April 25.  Sawyer’s attorney has already drafted a renewed motion to dismiss in light of the Vermont Supreme Court’s ruling.


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About Cydney Joyner (15 Articles)
Cydney Joyner is a third year law student and serves as an Associate Editor for the Campbell Law Observer. She is originally from Winston-Salem, NC. She attended undergrad at Salem College, a women's college in Winston-Salem, where she studied Political Science, International Relations, and Religion. During the summer following her first year of law school, she worked at the Buncombe County District Attorney's Office in Asheville, NC. Her legal interests are criminal law, international law, and constitutional law. This summer Cydney is interning at the U.S. Attorney's Office for the Western District of NC in Asheville.