This article is written by Nishka Kamath. It covers all the important aspects one must know about inchoate offenses, including its basic elements, meaning, scope, types, examples, history, general rules, penalties, defenses, etc., with the help of several examples, case laws, and defenses, inter alia. Also, the status of inchoate offenses in various states of the US, along with some frequently asked questions (FAQs) about the offense, have been discussed in this article.   

Table of Contents

Introduction

Are you intrigued by the idea of kidnapping someone, murdering your arch-enemy or even robbing a bank or, say, an art gallery? Kindly hold your horses, as mentioning this or even putting a step forward onto committing such an act will land you behind bars. So, even when the target crime was not performed, the individual(s) performing such an act can be charged for trying to do so. Depending on the situation in which such an incident took place, the crime can either be considered a misdemeanor or a serious felony.

Point to be considered: Whenever a person is charged with such an offense, he/she/they should consult a lawyer who is familiar with the laws of that state, as one needs a strong defense attorney to safeguard the accused from such serious charges.

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Now, coming back to the offense, such an ‘incomplete crime’ or an ‘almost offense’ is regarded as an inchoate offense in the world of law and crime. Let us take a look at what exactly an inchoate offense, the examples of such an offense and the nitty-gritty of such an offense!

Interesting fact: A lot of the US states now follow the procedure laid down in the Model Penal Code (MPC) for inchoate offenses.

Inchoate offenses : basics elements and framework

A criminal court can, at times, pronounce a judgment that says one is guilty of committing an offense even if one did not do it. For example, if an individual fails to report child abuse or fails to file an income tax return, the court can count against you in the above instances. Another time when one can be convicted of committing a crime even when it did not occur is in the case of inchoate offenses. For instance, attempted murder is not the same as actual murder itself, even though it is still a crime. An individual can also be held guilty of being an accomplice to murder, even when the person did not touch the murder weapon and that person was not among the last people who saw the victim alive.

Exploring inchoate offenses : an overview

Have you ever started writing an assignment but left it incomplete? Maybe you were interrupted in the middle of the assignment by your friend or you simply forgot about the assignment? Say, you had every intention of achieving your target and completing the assignment, but for some reason, you were not able to finish it. In such a scenario, one can say that your assignment was inchoate. Well, this is quite similar to the idea behind inchoate crimes.

An inchoate offense can be regarded as a type of crime that is performed by taking a prosecutable step in the direction of the commission of another offense. Inchoate offenses can be described as those crimes that do not require the ‘full completion of the intended criminal act’. The crime allegedly intended is addressed as the target offense. Simply put, such a crime involves activity or actions performed with the intention to commit a target offense. Even though these acts are not themselves regarded as crimes, they are illegal and they are performed in furtherance of a crime and society as a whole desires to prevent people from taking such steps.

Meaning

Not every individual is familiar with the word ‘inchoate’. The term ‘inchoate’ is derived from the Latin word “ichoare”, meaning “to start work on” and in Latin, it literally translates as “to hitch up”. It can also be defined as “to begin” or “to become”. So, the word means something that has not been formed fully, stages of development. 

In law, inchoate offenses involve three acts, i.e., attempt, conspiracy, and solicitation. For an offense to be regarded as an inchoate offense, it is crucial that there must be a mention of the target offense to which the inchoate offense is connected. For instance, in charge of conspiracy to commit the offense of money laundering, the target offense is money laundering. In the context of inchoate offenses, solicitation means offering someone the funds to commit a target offense, like that of funding a hitman to murder someone.

Scope of inchoate offenses

Usually, offenses are classified into 4 different successive stages, namely:

  1. Intention to commit that crime,
  2. Preparation for committing the crime,
  3. Attempt to commit the crime,
  4. The actual commission of the activity.

From the above four stages, an individual will usually be liable for the third or fourth stage only and the accused might not be charged for the first or second stage.  Say, for instance, that if Jacob wants to kill Ana but does not take any steps to do so (and is still in the first stage), he will not be held guilty of committing any offense. Further, even if he buys a gun (licensed) to kill her, but does not proceed to commit the crime, thus being at the second stage, i.e., the preparatory stage, he will not be held guilty of any offense.

Furthermore, there are two elements that are of utmost importance to state that a crime has been committed, they are:

  1. mens rea, and 
  2. actus reus.

So, a mere evil intention or thought or even a plan plotted that is not executed or the prohibited act (or the act that is against the law) is not committed, then it cannot be constituted as a crime (i.e., actus reus). So, actus reus is necessary for a crime to be committed; however, there are instances where a crime was committed without actus reus. For example, Jim aims at Jammie and fires a bullet but misses the target; here, there is no actus reus and no murder thus committed. However, the crime has been committed. An individual will only be liable if he has, at any stage, committed the act or taken the necessary actions to commit the crime, i.e., when mens rea is involved. These are simply known as inchoate crimes.

This term is oftentimes criticized by modern philosophers, who consider it misleading because the word ‘inchoate’ connotes something that is incomplete and thus, is not an accurate depiction of an act that in itself is completed, even though it is a link in the chain of events causing an effect that is yet to be attained. One can be said to have fully committed incitement even though the person incited immediately repudiates the suggested act. Further, a conspiracy is committed even though the conspirator has not yet moved to take any steps towards the proposed crime and the performance of the criminal attempt must always have been reached before the end is reached. In all these scenarios, it is the ultimate crime that is inchoate and not the preliminary crime. The position indeed being the same as in the case when Jacob buys a revolver and commits other wrongs to give effect to his ultimate goal, the murder. Here, the murder will be regarded as an inchoate offense and if Jacob had stolen the gun from someone, then it would have been the offense of theft and/or other crime (please note, this offense- the former one- would have been regarded as completed).

Basic types of inchoate offenses 

There are three basic types of inchoate offenses, namely:

  1. Attempt,
  2. Solicitation, and
  3. Conspiracy.

On one hand, the term ‘attempt’ is a type of inchoate offense that takes place when a person takes substantial steps towards committing a target offense but eventually does not successfully complete the crime. Say, for instance, a person tries to rob a bank but is not successful in such an activity; in such a case, he/she has committed the inchoate offense of attempted robbery. This act is regarded as being the closest to actually carrying out the crime. 

Please note: Threats and challenges will also come under the purview of attempting to commit the crime.

Whereas, on the other hand, conspiracy to commit a crime involves assenting to commit a particular crime. 

Please note: A person can be charged with the crime and the conspiracy to commit the crime, as well. Therefore, in the case of murder charges, the person can be charged with murder and conspiracy to commit murder at the same time.

Additionally, solicitation means asking another individual to commit a crime.

Please note: Even in cases where an individual who solicited or accompanied another individual (who actually committed the crime), the individual who solicited may be charged with solicitation.

One must note that inchoate offenses merge into the target offense except in the case of conspiracy, meaning if a suspect is charged with committing a particular crime, he/she cannot additionally be charged with an attempt and solicitation of the same crime. Nonetheless, both the conspiracy to commit a crime and the crime itself may be charged together. All these categories are discussed in the upcoming passages.

Examples of inchoate offenses

The laundered restaurant funds

James joined hands with an accomplice who got the funds from drug trafficking to deposit into his business’s account and make it look like the money is legitimate. Such an act will constitute a conspiracy to commit money laundering.

The house break-in attempt

Samuel tries to barge into a house but runs away when the security alarms ring. In such a scenario, he is guilty of attempted burglary.

The drug trafficking solicitation

Antonio offers Shazam some funds to transport a shipment of drugs for reselling in this case. His main goal was to find someone for drug trafficking or to transport/export these drugs. In this case, Antonio will be held liable for solicitation of drug trafficking.

The unaccomplished art museum heists

A group named ‘The Canvas Stealer’ has four members- Sarah, James, John and Michele, who unanimously decided to steal a famous painting from an art museum. They together plot a plan and even manage to barge into the museum during the non-visiting hours without being caught. The plan is that Sarah and James quickly get into the museum and John and Michele stay in the car to guide them and escape the place once the painting is bought. However, just when Sarah and James were coming out with the painting, security got alarmed and caught them red-handed. The security further forces them to go back empty-handed. Such a scenario depicts attempted theft when the crime remained incomplete due to some external factors.

The undelivered blackmail email

Alex, a hacker, drafts an email threatening to expose damaging information about a politician unless the politician pays ten million dollars. However, before clicking ‘send’ she decides to delete the draft. In this scenario, even when no harm was done, the act of drafting such an email will be regarded as solicitation or attempted extortion.

The near-about destroyed evidence

In one of the criminal investigations, Johnny, in order to save himself from prosecution, destroys some major evidence against him by setting the documents related to his illegal activities on fire. However, this act was interrupted by some police officers and half the documents were restored. In this case, Johnny has tampered with evidence, a classic example of an inchoate offense.

The fallen flat cyber attack

A hacker named Jennifer plots a cyberattack with the aim of disrupting a major company’s systems. Despite her efforts, she failed to get access to the system as the company’s security measures were quite strong. This is an example of a failed cybercrime attempt depicting how inchoate offenses are applicable in the real-life technological world.

The aborted murder story

Emilia, in order to seek revenge from her business rival, Enigma, hires a hitman to kill her but she has a change of heart and informs the authorities before the crime is carried out. In this scenario, even when Enigma suffered no harm, the initial solicitation of murders reveals the seriousness of inchoate crimes and the legal consequences thus involved. 

The unexecuted drug deal 

Nathani and Olivia plan to execute a drug deal, and decide on the date, day, time, place and quantity of the deal. However, before the exchange occurs, the law enforcement authorities intervene and stop the transaction. This is a scenario of attempted drug trafficking where the steps towards committing such an offense were taken but not successfully executed.

The unrealized bank robbery

There was a gang named ‘Cash Crusaders’ with 4 members- Sam, Samuel, Sage, and Spencer—who decided to rob a bank. They plan everything and map out the layout; however, before they execute it, Spencer has a change of mind and heart and informs the authorities. In this scenario, even if the robbery did not take place, their plan constitutes an attempted bank robbery.

The incomplete arson attempt

Dominic, frustrated with the neighbor’s nuisance every day, decides to set his row house on fire and pour kerosene on the property with the intent to burn the house down. However, while doing so, the guard of that complex catches him and alerts everyone about the activity to stop him from causing such harm. In this case, even though Dominic’s attempt was not executed completely, it is an example of attempted arson, which will be regarded as an inchoate offense.

The aborted abduction

Jacob plans to kidnap a person but as soon as he proceeds to execute the plan, one of the neighbors smells something fishy and informs the police immediately, who visit the site and Jacob flees away. Here, Jacob’s action is an instance of attempted kidnapping.

The incomplete attempt to bribe an official

Olivia, in order to get her work done, makes an attempt to bribe a public official, Dylan. But Dylan reports this activity to the authorities immediately. Even though there was no transaction as such, her intention and action of offering a bribe to Dylan will be regarded as an attempt to bribe a public officer and thus it is an instance of an inchoate offense.

The incomplete fraud fusion

Say there is a team of fraudsters operating by the name of ‘Fraud Fusion’ in Ohio. There are three members in the team (Brian, Samuel, and Jacob) who prepare false documents and strategically fool others. In one such attempt, they are caught red-handed and stopped by an official on duty, thus making their plan a failed attempt. In this case, even though no fraud was committed, the team’s attempt to commit the conspiracy or fraud will be regarded as an inchoate offense.

The role of principle and accomplice in inchoate offenses

When it comes to inchoate offenses, the individual actually committing the crime is called the ‘principle’ and if the above individual is accompanied by another person for performing that activity, then such an individual is addressed as an ‘accomplice’. An accessory may help a principal or accomplices before or after the commission of the crime. It is pertinent to note that an accessory or accomplice to a crime will also be considered to be involved in the activity of committing an inchoate offense.

History and development of the concept of inchoate offenses under US Criminal Law

Even though the founders of the American Republic were not completely in agreement with the inquisitorial system of English law that gave authorization to the criminalization of many group activities that were of a seditious nature; they only specifically regarded treason as a crime in the US Constitution. Further, the US has a long history of prosecuting solicitation and conspiracy aggressively. Also, the RICO statute, also known as ‘Racketeer Influenced and Corrupt Organizations, influenced the prosecution of inchoate crimes to a large extent.

Three categories of inchoate offenses

As discussed above, there are three types of inchoate offenses. In this section, we will be discussing all of them in detail.

Attempt 

An attempt is made when an individual performs a particular activity with the intention of committing a crime but is not successful in such an act/attempt. In other words, an attempt means a person tried to perform a crime but did not complete it successfully. Inchoate crime requires that an individual take action in furtherance of the crime. 

Further, most attempted felony crimes attract a penalty of ½ of the maximum punishment of the completed crime. So, if a person attempts a felony successfully, he/she will be sentenced to life imprisonment and will be said to be guilty of committing a Class B felony. 

Furthermore, if a person commits a Class I felony, he/she will be held guilty of a Class A misdemeanor. Also, some attempted crimes attract a penalty that is the same as committing the actual crime itself.

Key elements of attempt

As we know, an attempt is a type of inchoate crime wherein a person has an intention to commit a targeted crime, takes major steps toward achieving or committing the targeted crime, but eventually does not succeed in exciting the target crime. From this definition, we can say that an attempt has the following key elements:

Intention to commit a crime

It is a criminal offense under common law to commit any misdemeanor or felony. The two significant components of the attempt are as follows:

  1. A specific intent to commit a crime, and
  2. An activity that takes a step toward completion of the criminal activity or the crime.

Further, the intent (or mens rea) part of the attempt has mainly two elements, which are as follows:

  1. Firstly, the defendant has the intention to perpetrate any activity that is necessary for the commission of a crime or an act that will result in the commission of the crime.
  2. Secondly, the defendant must have the intention for the crime to be committed.

Please note: The second element may be absent in all crimes except specific intent crimes. To commit a crime of intent, the defendant must actually have the will or desire to achieve the desired criminal result, as mentioned in People v. Matthews, 258 N.E.2d 378 (Ill. 1970). Simply put, there has to be proper proof that the person intended to commit the target offense; hence, accidental attempts will not be considered viable in the courts. Additionally, the ulterior motive has to be specific to the target crime and should not be a general ulterior motive with no explicit intended results as such. Thus, motives like recklessness are not sufficient as evidence. Nonetheless, if the intention for the attempt was specific and that caused offense to another party, in such scenarios, the intent can be transferred to the second offense.

Some instances of intention to commit a crime as an element of attempt

Let us say that there is a homeless man named Jogi who lives on the streets of Jellystone. One fine day, the weather got chilly and Jogi decided to barge into the basement of a man named Mr. Power Ranger and spend the rest of the night in the basement. Jogi then proceeds towards Power Ranger’s basement and starts to look for any open windows; however, in the meantime, a police official arrests him. In such a case, he cannot be charged with attempted burglary. 

For someone to be penalized for committing attempted burglary, there are two things necessary, namely:

  1. The intention to perform an activity that makes up for the offense of burglary (like barging into and entering the basement at night in the above scenario), and
  2. The intention is necessary for the actual burglary, meaning the intent to commit a crime once the individual is inside the place (basement in the above case). 

In this scenario, Yogi’s situation does satisfy the first element, i.e., the mens rea test, as he had the utmost intention to barge into Mr. Power Ranger’s house or basement at night. Nonetheless, the second element of necessary intention was absent, as Yogi never had the intention to commit a crime or wrong once he managed to enter the place. In simple words, we can say that Yogi had the intention to commit the act constituting a burglary but he never had the intention to commit the actual burglary. Thus, Yogi cannot be penalized for attempted burglary.

In most jurisdictions, there is no such provision as an attempt to commit a crime that has a requirement of mens rea less than the intention (like crimes that occurred because of recklessness) for the simple reason that one cannot attempt to be reckless by the definition. For this, one must read this case law State v. Dunbar, 817 P.2d 1360 (Wash. 1991). Let us understand this with the help of an example.

Say, there is a person, Mr. Unlucky, who is sad that he has just slacked off from his office and, in disappointment or in the moment of grief and pain, closes his eyes and throws a knife onto a crowded sidewalk. Fortunately, no one was injured by such an abrupt action, and it missed all the people on the road and settled on the pavement. In case the knife had injured or killed someone, Mr. Unlucky would have been held guilty of homicide or assault, as his actions were obviously quite reckless. But he cannot be held guilty of attempted homicide or attempted assault, as he did not have any explicit intention to hurt or murder any person. So, even if anyone gets injured by the defendant’s reckless act, he/she cannot be charged with attempted murder unless the defendant had the utmost intention for the death of the victim. Let us understand this with the help of an example:

Once the Boston Red Sox won their first World Series Championship in about eighty-five years with the assistance of Ramon Garcia, in excitement, Garcia climbed on top of the green monster in the left field and, in happiness, started to throw basketball bats down onto the crowd. One of the bats hit a fan’s skull, leaving him severely injured and fractured. The fan is then rushed to the hospital, where he remains in a near-death state for the next 14 days. However, the fan gets better over time. If the fan had lost his life, Garcia could be held guilty of homicide as his actions were committed with the knowledge that they might cause severe injury to the fans or even pose a risk to their lives, enough to prove intent when it comes to homicide charges. However, this mens rea is not enough for Garcia to be charged with attempted murder, as such an act has a requirement- the intention to kill someone. In this scenario, Garcia did not have any such intentions; he merely acted with the utmost recklessness and there is no such thing as attempted recklessness.

Then, when it comes to the actus reus element as a requisite for an attempt, one has to take a step forward in committing the crime and the step must be beyond simple ‘preparation’. Kindly refer to this case for more information- State v. Bereman, 276 P.2d 364 (Kan. 1954).

Also, even though several case laws have established different definitions as to what constitutes an act that advances toward the commission of the crime, the most simple and straightforward definition can be said to be that of the Model Penal Code, which states the following two requirements:

  1. The act can be regarded as a considerable step in the events that are supposed to result in the commission of the crime, and
  2. The act must be a strong proof of the criminal intent/motive of the defendant.

(One can refer to United States v. Jackson, 560 F.2d 112 (2nd Cir. 1977) for more details.

Significant activities leading to a crime

For an attempted action to be penalized, the perpetrator has to take major steps towards committing the offense. For instance, if a person merely thinks of committing an offense, say he/she thought of murdering his boss because he was giving him/her a hard time, then no, he/she cannot be charged for the mere thought. However, if they think about the murder and plot a plan to execute the crime, then the attempt can be said to have occurred.

Failure to commit the crime

If a criminal activity takes place, we can say that an attempt was successful, and thus the attempt as an offense will carry no significance as such. Thus, the target crime should not be achieved/completed in cases where the person is charged with an attempt; otherwise, only the target criminal activity will be prosecuted.

Example of attempt

A good example of the above act could be attempted murder. Here, the defendant fired a shot at another individual with the motive of killing him but missed the target by half an inch.

Prerequisites for a criminal attempt

As we know, an attempt is the act of making an effort or trying to commit a crime but failing to do so. As an attempt can involve serious crimes like murder, it is oftentimes noticed as the most serious of the inchoate crimes. Criminal attempts have three requirements, which are as follows:

  1. The individual has to have the intention to commit the actual crime.
  2. The individual has to take steps/actions in furtherance of the crime.
  3. The crime has to be/stay incomplete. If it is completed, the accused person will be charged with the actual crime and not the attempt (thus, it will not be an inchoate offense).

For more details, read the key elements of the attempt section.

Please note: In most of the US states, there is a mandate that a substantial step in furtherance of the crime must be taken, in addition to intent, for an attempt.

Attempt and its relevance to the Model Penal Code

As per the Model Penal Code, attempt is defined as the act of performing the kind of culpability which otherwise would be required for committing a particular crime, and when-

  1. A person deliberately engages in an activity which would be regarded as a crime if the attendant events were as he believes them to be, or
  2. When an activity will result in being an element of the crime, or when an activity is performed or omitted that results in committing a crime, or
  3. When an individual deliberately does or omits an activity that, under circumstances as he believes it to be, constitutes a major step in conducting the planned act.

One must note that not every state follows the rules set forth in the Model Penal Code. An individual state may have its own set of laws or statutes that describe their crime of attempt. Say, for instance, the Alabama defines an attempt as the intention to commit a specific crime, and when a person takes a step or acts towards committing such an activity. Further, under Oregan law, attempt is defined as the act of intentionally engaging in any activity that constitutes taking a major step forward in committing the crime/wrong.

Further, an attempt is a specific intent offense, meaning that the mens rea (guilty mind) depends on the level of intentions of the offender. One must note that, ‘intention’ is the most culpable state of mens rea. Also, negligence, recklessness or even being aware of the mental state will not suffice to sustain a charge of attempt; thus, an affirmative desire to achieve the end result is necessary.

State v. Lyerla 424 N.W.2d 908 (1988)

Say for instance, in a 1988 South Dakota case [State v. Lyerla 424 N.W.2d 908 (1988)], the defendant (Lyerla) fired shots into a truck in which there were three people travelling- the driver (Tammy Jensen) and the other two passengers. The gunshot killed the driver and the defendant was held guilty of committing ‘reckless’ second degree murder and was also initially accused of attempted murder of the other two passengers. However, the Supreme Court of South Dakota held that the charges against individuals for being guilty of attempted murder were estopped because an attempt requires a higher level of intent than recklessness. The Supreme Court made a statement that for an activity of attempt to be regarded as an offense, specific intent to commit the act has to exist in the mind of the offender. Further, for second degree murder, an individual must have the intention to have a criminally reckless state of mind. Let us understand this with an instance from the judge’s statement (with some amends from the author’s part).

Say, even after being aware of the fact that A is a bad shooter, he makes an attempt to aim at B’s eyelashes and fires a bullet in that direction fifty feet away from his target. However, if A misses the target and shoots B right onto his temple and kills him, the act will be regarded as second-degree murder under South Dakota law. In another scenario, if A misses his aim and shoots in the direction of B, and, say, injures B’s knee, then such an act will be regarded as attempted second degree murder under the provisions laid out in South Dakota law. Now assume- A misses his aim altogether; then such an act would be regarded as a second degree murder under the provisions laid down under South Dakota laws.

Now let us come back to the case. The judge said that the jury’s belief was that the driver did not have the intention to kill the deceased and thus was held guilty of second degree murder. Further, the driver also had no intentions of killing the other two passengers, as the sentence of attempted second degree murder was passed. However, if the act had caused the deaths of the other two girls (the passengers), like that of the truck driver, directly or indirectly, say through a car accident, he would have been held guilty of second degree murder. In this case, since death did not result with the element of intent, the accused was guilty of attempted second degree murder as per the law prescribed under South Dakota’s provisions.

Basically, thinking about murdering someone or having the will to murder a person will not be considered a criminal activity. A person has to make an ‘overt act’ or take a ‘substantial step’ for the action to be regarded as a crime. The main legal difference is between ‘mere planning’ and the ‘overt act’ or ‘substantial step’ an individual would take. The laws on this may vary from state to state and may also differ from court to court. Let us take a look at another case law.

State v. Davis [814 S.W.2d 593 (1991)]

In State v. Davis [814 S.W.2d 593 (1991)], a case filed in the Supreme Court of Missouri in 1928, the defendant employed somebody (who in reality was an undercover police officer) to murder another person. The person went on to give pictures of the intended victim to the hit man and also paid him some money from the decided fee. Now astonishingly, his conviction was reversed, the reason being that the Missouri Supreme Court opined that such actions are mere “perpetrarion” and not an “attempt”. It is crucial to note that in the modern context, a person would be held guilty of conspiracy to commit murder, if not attempted murder.

Stokes v. State, 92 Miss. 415, 425-26 (1908)

In contrast, the Supreme Court of Mississippi in one case [Stokes v. State, 92 Miss. 415, 425-26 (1908)] declared the defendants (Will Stokes and Cara Lane) guilty of committing attempted murder when the defendants hired a hitman (Shorty Robertson) to murder Cora’s husband, Wallace Lane. The defendants (who were also lovers) made a request to the hitman to kill Cora’s husband and also loaded a gun and gave it to Shorty Robertson, the hitman. As per the plan, Shorty Robertson was supposed to be hiding with a gun alongside Wallace’s daily route home; however, he reported the plan to police officials beforehand. To execute the plan, Shorty and Will reached the place as per the plan, and so did the police officials and each party hid at the prescribed location. The police apprehended Strokes as he handed Robertson a gun loaded with bullets. Even though Robertson had not received any money and Wallace did not take his usual route home that night, the Trial Court (where the suit was first filed) charged Strokes with attempting to murder Wallace. Even though Strokes and his attorney contended that such an act did not amount to an attempted murder because the circumstances were totally unsuitable for Robertson to murder Wallace, both the Courts opined that giving the hitman a loaded gun was enough of an activity to constitute an attempted murder. 

In order to maintain uniformity in applying the definition of attempt, the Model Penal Code designed a substantial steps test that has two parts, namely:

  1. Firstly, an individual will be guilty of an attempt to commit a particular crime if he/she does anything (i.e., an act of omission constituting a substantial step in a course of conduct planned to culminate in his or her commission of the crime).
  2. Secondly, the action of the person accused or the defendant has to be “strongly corroborative of the actor’s criminal purpose.” 

Further, there are about seven instances of behavior that are regarded as substantial steps under the Model Penal Code, as they are strongly corroborative of the actor’s criminal purpose”. The seven pointers are as follows:

  1. Sneaking around, observing/looking for or following the targeted victim for the criminal activity.
  2. Tempting or making an attempt to tempt the targeted victim to visit the area where the plan has been designed to be executed.
  3. Searching and/or carrying out a survey at the place where the criminal activity is targeted to be performed.
  4. Illegally getting inside a structure, vehicle or enclosed space where one intends to commit a criminal activity.
  5. Possessing materials that are used for committing a wrongful act, those that are explicitly designed for illegitimate usage or those that serve no lawful purpose for the intended criminal activity.
  6. Owning, collecting or designing materials to be used in committing a wrongful activity, at a particular location or nearby, where such ownership, collection or layout serves no lawful purpose for the actor under the circumstances.
  7. Trying to convince an innocent person to engage in carrying out an act that forms part of the targeted crime.

This seven step test allows the act of attempted crime to be convicted or freed based upon the steps already performed, even when the defendant was far from completing the target crime. The provision in the Model Penal Code acknowledged that the steps taken in the step of the attempted crime widened the liability beyond many of the common law doctrines.

However, it is noteworthy that if a defendant decides to target a particular number of potential targets and never actually decides on a particular intent to commit the intended crime, he cannot be held guilty of an attempt because the action of targeting the crime does more than constitute the necessary act. Let us take a look at an example involving the above concept.

Mitch decides to rob a bank named Grand Cayman; the bank has six branches. Mitch drives around locating all six branches and reaches the inference that the plan is too hard to accomplish and gives up on it, thus abandoning it. Here, Mitch cannot be held guilty of attempted robbery considering the fact that he never got to select a specific target to commit the crime, meaning his actions went far enough as to constitute an attempt. One must read the case of People v. Smith, 593 N.E.2d 533 (Ill. 1992) for more details.

Penalty for an attempt

The punishment for an attempt depends on how severe the target crime would be had it occurred. Therefore, attempted murder and attempted theft cannot be punished equally. However, the punishment is typically less than the punishment for the target crime.

Further, as far as the penalty for an attempt is concerned, a common law attempt will be penalised by a lesser punishment than the actual crime that is completed. Even though, the Modal Penal Code has a provision that the same amount of penalty should be given to the attempt as well as the completed crime.

Defenses for an attempt

Nevertheless, the defendant may argue several defenses for an attempt, including:

  • The attempt was impossible to commit based on the facts (impossibility).
  • They neglected their plans to attempt the crime (abandonment).

Let us take a look at these defenses in detail.

Impossibility

Impossibility has been an age-old defense when a person is accused of an attempted offense in some states of the US and under certain circumstances. Even though such a defense has been the subject of morally questionable or dubious analysis, the modern trend is to allow the usage of impossibility as a defense when the activity is not illegal, as held in the case of United States v. Mehanna 735 F.3d 32 (1st Cir. 2013) by the United States Court of Appeals, First Circuit.

Let us understand the above facts with the help of an example. Suppose a person attempted to purchase marijuana illegally in Colorado, being unaware of the fact that marijuana is actually legalized in the states, then such an act will not be regarded as an attempt to purchase an illegal substance.

Further, while reading about impossibility, one must consider the general rule, which says if the impossibility belongs to the category of ‘legal’ impossibility, then the defendant can use the defense of impossibility. But, if the impossibility is a ‘factual’ impossibility, he cannot use it as a defense in the court of law. For more details, please refer to the case of People v. Dlugash, 41 N.Y.2d 725 (1977).

Also, legal impossibility is essentially when the defendant sets out to commit an activity that he is under the notion that he believes is criminal. However, if the defendant’s actions are not illegal, then the defendant’s misconception concerns the law itself. So, if the defendant mistakenly is of the belief that the law punishes such an act, whereas it does not, in reality, then the defendant can use the impossibility defense. Let us try to understand this with the help of an example.

Say, there is a city named Kingston, where a law has been passed that allows the use of marijuana without any restrictions. The law will be effective from 1st April and from then on, one could sell and use marijuana legally. 

Now, say, there is a person named Ben who is under the wrong impression that marijuana will be legal on May 1st, but still sells marijuana to John, believing his actions are not legal. 

Here, Ben is not guilty of attempting to sell marijuana, as he can use the impossibility defense. The reason being that it is legally impossible to commit the crime Ben was trying to commit. Ben had intentions of committing a criminal wrong by selling marijuana; however, the activity was illegal in his eyes but the actions were legal. So, as it was legally impossible to commit the criminal wrong Ben made an attempt to commit, he can argue on the basis of the impossibility defined in this circumstance.

Furthermore, factual impossibility can be said to be an act wherein the defendant goes to commit an act, which, if successful or complete, will be regarded as a crime; however, if the defendant could not commit the crime due to some circumstances that he/she was not aware of, then the mistake of the defendant will not be in regard to the actual provision in the law, but rather, in regard to the factual situations thus surrounding his actions. This is regarded as a factual impossibility and it cannot be used as a defense to a charge of attempt. One must refer to the case of People v. Fiegelman, 33 Cal. App. 2d 100 (1939) for more details. Let us also look at an example to understand this topic better.

Even though Ben was aware of the fact that selling marijuana is illegal in his jurisdiction, he proceeded to sell Peyton what looked like a bag of pot/marijuana. Ben is not very good at selling drugs, nor is he very renowned for such an act. Ben accidentally sells Peyton a bag of oregano. In this scenario, it is not possible for Ben to have violated any law as he sold oregano (a legal substance) instead of marijuana (an illegal substance). However, Ben was aware that selling marijuana is illegal. His mistake is about situations surrounding his actions. So, even though Ben cannot break the specific law he had intentions to break, considering the substance he sold, this factual impossibility is only about the facts. As per the provisions of the law, the act of selling oregano imputed to marijuana was a factual impossibility and since factual impossibility cannot be used as a defense to attempt, Ben can still be declared guilty of attempting to sell marijuana.

Withdrawal

Another possible defense for attempted charges is withdrawal. Traditionally, the rule was that the act of withdrawing from an attempt did not constitute a defense, even when it was completely voluntary. [One must refer to the case of United States v. Shelton, 30 F.3d 702 (6th Cir. 1994) for more information.] However, the Model Penal Code and the statutes that are based on the Code permit the use of withdrawal as a defense if the following two requirements are met:

Voluntary withdrawal

Firstly, the withdrawal has to be completely voluntary and cannot stem from any situation that made it difficult to commit the crime or heightened the chances of the offender being caught, provided the offender was completely ignorant of the same (the chances of getting caught being high) at the time he began his offense. Let us take a look at an example of the same.

Mitch decides to rob a bank named First National Bank of Grand Cayman and in order to do so, he collects special drilling tools that he will use to get access to the bank’s vault. Later, he realizes that the security at the bank is more advanced than he initially assumed it to be so he abandons the plan. Here, even though Mitch withdrew from his attempt to rob the bank, he can still be held guilty of the offense because his act of withdrawing from committing the activity was not completely voluntary. Rather, his withdrawal relied on the circumstances that Mitch was unaware of at the beginning that was related to the difficulty of completing the criminal activity. If Mitch had woken up and decided not to commit the robbery, as stealing is easy but not the right thing to do, such an act would have been an entirely voluntary withdrawal, and that would have offered him a legitimate defense to a charge of attempted robbery.

Complete withdrawal

Secondly, for the withdrawal to be valid as per the Model Penal Code, the withdrawal has to be complete, meaning the defendant has to cancel his plan of committing the crime altogether. So, if the defendant only postponed the plan of committing the crime, such an act will not be regarded as a total withdrawal and the person can still be charged with the attempt. 

Abandonment

Another defense one can use is that of abandonment. It can also be regarded as a defense in cases where the effort to commit a crime was voluntarily and completely waived off by the defendant. Nonetheless, the defense will be applicable only when the withdrawal was not merely postponed or terminated because of any change in the situation that made success in committing the crime less likely to have occurred.

For example, imagine a person trying to rob a bank. In order to execute his plan, he puts on a mask and pulls out a gun from his waistcoat but he sees an armed police officer entering the bank. He then swiftly puts the gun into his waistcoat again and quickly proceeds towards the door to get out of the bank. As per the circumstances, such an act will not be counted as abandonment or robbery attempt.

Consider the following case- Say, in a trial case [Thomas v. State, 708 S.W.2d 861, 864 (Tex. Crim. App. 1986)], for attempted robbery, a witness testified that she noticed the defendant and another individual suspiciously looking into the windows of homes in her neighborhood. She then noticed that both of them had entered her neighbor’s yard and quickly called the police. An officer quickly arrived at the location and arrested the two men. The defendant, while confessing about the activity, confessed that he was initially planning to rob the home, but after removing some weather stripping from the window, he had a change of heart and decided to leave. The Court affirmed that the individual will be charged with attempted burglary, considering the evidence shows that the defendant abandoned the criminal activity of burglary when he saw the police officials approaching. Thus, the abandonment was not voluntary.

Please note: Withdrawal and abandonment could be more or less similar defenses.

A must know detail about attempt

One important thing about an attempt one must know is that an attempt to commit a criminal activity will ‘merge’ with the completed crime. Thus, an individual cannot be convicted of both offenses, i.e., an attempt to commit a particular crime and the completed crime. So, a person who aims at a victim and kills him/her cannot be charged with two offenses- that is, the murder and the attempted murder of the victim—even when, technically, he has met the requirements of both- the murder and the attempted murder.

Lastly, it must be noted that an attempt to commit a crime is a ‘lesser included offense’ of the completed crime. Simply put, a defendant who is put on trial for murder cannot also be tried for attempting the same murder. As one offense is a less included offense than the other, trying the defendant for two offenses would be against the ‘double jeopardy clause’ of the Fifth Amendment, which forbids trying a defendant twice for the same offense.

Conspiracy

A conspiracy is, broadly speaking, an agreement between two or more individuals to engage in criminal activities. Also, anyone who agrees or joins hands with another individual to commit a felony crime, may be punished with a fine or imprisonment, or, at times, both. One must make a note that merely planning or agreeing will not be enough to garner a conspiracy charge. So, an individual has to take some action toward the criminal objective, although the action may not be illegal in itself. For such an offense, the punishment would not go beyond the maximum time for which an individual will be punished had he/she successfully completed the offense. There is an exception in cases where the target crime is punishable with life imprisonment; here, the conspirator will be charged with a Class B felony.

Conspiracy in the US

As we know, a conspiracy can be defined as an agreement between two or more individuals to engage in unlawful conduct or perform a criminal activity. Historically speaking, for conspiracy, an ‘overt act’ by at least one of the members in furtherance of the agreement was also a mandate; however, in United States v. Shabani, 513 U.S. 10, 15 (1994), the United States Supreme Court held that there is no requirement of an ‘overt act’ to exist for convicting an offender under the federal drug conspiracy statute discussed under 21 U.S.C. § 846. Further, just like an attempt, a conspiracy is a specific intent crime, i.e., the conspirator has to have the intention for the illegal objective to take place.

Conspiracy and the Pinkerton rule

Generally, conspirators are criminally liable for every reasonably foreseeable crime they commit in furtherance of the conspiracy by other members in the activity of committing conspiracy, as held in the case of Pinkerton v. United States, 328 U.S. 640, 46-47 (1946). For instance, if an individual conspires to commit an armed robbery, he may be liable for committing murder, in case he ends up accidentally shooting the bank teller. Further, while determining the foreseeability, courts might consider the extent of the defendant’s involvement in committing the activity. So, a defendant who has minimal involvement is less likely to be held liable than a defendant with more involvement. When applied, the ‘overt act’ requirement for conspiracy requires less than the overt act for an attempt, as held in the case of  State v. Verive, 627 P.2d 721, 732-33 (Ariz. App. 1981). For instance, a conspiracy may exist even before the criminal act is actually attempted; on the other hand, there is no criminal attempt until the required steps for the commission of the attempt (required attempt) are taken. Let us understand this with the help of an example. 

There are two individuals named Joe and Sam who plan to poison William, their roommate. To execute the plan, Joe purchases the poison and Sam coats a steak with that poison and serves it to William on his dinner plate. However, William says he is not hungry and does not eat the poisoned steak. If Joe and Sam are in a jurisdiction where there is no requirement of ‘overt act’, they will be held liable for committing conspiracy the very moment they decide to poison William. And say, if an overt act is necessary, then Joe purchasing the poison was most certainly a representation of an ‘overt act’ in furtherance of the conspiracy. Therefore, both will be held guilty of conspiring to commit murder when Joe bought the poison. Further, ‘attempted murder’ did not occur until Sam put the poisoned steak on the plate of William or at least until he coated the steak with poison.

There could be a possibility of confusion when the criminal activity may need two or more people. For instance, gambling and prostitution need the participation of at least two people. So, the question arises of whether defendants may be held guilty of gambling and the conspiracy to gamble. The general rule is that a criminal wrong needs the participation of two parties and cannot be considered the object of conspiracy as held in the case of Iannelli v. United States, 420 U.S. 770 (1975). So, in the case of prostitution, neither the prostitute nor the person running the brothel will be held guilty of committing conspiracy to solicit production when they decide on a particular amount in exchange for the services.

Example of conspiracy

An instance of a conspiracy is several people sitting together and planning a bank robbery. So, even if they are unsuccessful in robbing the bank, the offense of criminal conspiracy can be said to occur.

Also, if someone is charged with a (completed) crime, he/she cannot also be charged with an attempt or solicitation. However, the person can be charged with conspiracy and committing the target crime.

Elements of criminal conspiracy

The elements of criminal conspiracy as per the major statute for American Conspiracy law (18 U.S. Code § 371 – Conspiracy to commit offense or to defraud the United States) are as follows:

  1. There should be an agreement between two parties.
  2. The agreement should be about achieving a certain goal.
  3. The parties to such an agreement are aware of the nature of such a conspiracy and participate in it even then, and
  4. At least one party commits an overt act in furtherance of the conspiracy.

Prerequisites of criminal conspiracy

Quite similar to the above elements, there are some prerequisites one must know about a criminal conspiracy. Firstly, a conspiracy occurs when two or more individuals agree to commit an offense unanimously. Thus, for a conspiracy to be committed, two or more individuals have to participate in the activity. Secondly, in many states, the offense of conspiracy also requires that an individual conspiring has carried out an obvious act in furtherance of the criminal plan. As opposed to an attempt, a defendant can be charged for both- conspiracy to commit a crime and the actual crime itself. These offenses are regarded as two different crimes in criminal law. 

Understanding conspiracy in detail with the help of some examples

Actus reus

A conspiracy can be defined as an agreement between two or more individuals to commit a particular crime. However, there are several necessities that must be met for an activity to be regarded as a conspiracy. The first requirement is the mens rea and the other is the actus reus. It is not working that the mens rea requirement has two major points to be taken care of; they are as follows:

  1. The defendant should actually have the intention to agree to commit a particular criminal activity.
  2. Further, the defendant should have intended to fulfill or meet the goal of the conspiracy when he entered into an agreement.

Simply put, for the requirement of mens rea to be fulfilled, the defendant has to have the intention to form an agreement with others to commit a criminal activity and that the other individual had the intention to perform the required activity to reach the desired outcome (i.e., the commission for the crime). Let us understand this concept with the help of an example.

Robin asks Carter if he will work with him (Robin) to rob the First National Bank of Hollywood. Carter replied in the affirmative but in his head, he had planned on turning Robin to the police before the crime was perpetrated. Here, Carter is not guilty of conspiracy, as even though he said he agreed with Robin, he did not have the intention to achieve the ultimate goal of conspiracy when he made the agreement.   

Mens rea

Secondly, when it comes to the requirement of actus reus, as far as conspiracy is concerned, at common law, a conspiracy is said to be completed when an agreement is made between two or more individuals. Please refer to Williams v. United States, 218 F.2d 276 (4th Cir. 1954) for further information. Further, most of the jurisdictions in this era require that it be an ‘overt act’ taken in furtherance of the conspiracy by at least one of the conspirators for them to be held guilty of committing criminal conspiracy. Let us further understand this with the help of an example.

Fiona and Vendy decide to rob the First National Bank of Bedrock. Just agreeing to some activity will not hold Fiona and Vendy liable for punishment for conspiracy in most of the jurisdictions. But, if Fiona drives a van and waits for Vendy outside the bank so that Vendy can escape, then in such a scenario, both of them would be liable to punishment for conspiracy. Also, if the plan were to be executed on Thursday and Fiona gets a gun for Vendy to use while performing the robbery, this act would constitute an overt act and both parties would be held liable for committing conspiracy.

Some other points to know about conspiracy

It is crucial to note that the participation of two individuals is necessary to enter into an agreement for a conspiracy. If one party does not enter into an agreement, then the second party cannot be convicted of committing a conspiracy. Let us understand this better with the help of an example.

Dax, a famous drug dealer, is going to ship a large amount of heroin from the south to the border. He recently met a man named Devin and they have become good friends. One fine day, Dax decides to ask Devin if he has any interest in joining hands with him (Dax) in importing and distributing heroin, to which Devin replies in affirmation. However, Devin is a federal narcotics agent who has been trying to get information on Dax and his activities and carry out an investigation in that regard, but Dax is not aware of any of this. Before Dax picks up the shipping material, Devin gets him arrested. Astonishingly, in this scenario, Dax cannot be held guilty of conspiracy, as Devin actually never had the intention to enter into an agreement with Dax. Also, as we know, it takes two people to agree on something, and Devin never had the intention of entering into an agreement; there was no agreement in the first place for Dax to enter into. Thus, Dax cannot be held guilty of conspiracy.

If the prosecution can provide evidence that there was a conspiracy between two parties, the actions of another individual (a third party) can be used to demonstrate that there was involvement of a third party in committing the conspiracy, even when there was no direct evidence that the third party actually got into an agreement. To understand this better, let us take a look at an example.

Dax and Davin, two top drug dealers, enter into an agreement to work together to import a large shipment of heroin from south of the border. So, if Dax and Devin use another person’s car, say Stephen, to carry the drugs across the border, Stephen can be held guilty of being a co-conspirator. In this scenario, for Stephen to be held guilty, the prosecutor has to demonstrate that the drugs were transported across the border using his car and that Stephen gave his consent to use the car for the activity. One must refer to the case United States v. Knight, 416 F.2d 1181 (9th Cir. 1969) for more details.

Further, one must note that the agreement that constitutes a conspiracy does not necessarily have to be an express agreement. Instead, in case the defendant sees a criminal act happening and helps the conspirators in committing the act, such an act will be considered an implied agreement and that person, too, can be held guilty of being a co-conspirator even when he never explicitly gave his consent to the other parties to commit the criminal act. Let us understand this with the help of an example.

Dax and Devin, two top drug dealers, enter into an agreement to work together to import a large shipment of heroin from south of the border. They plot a plan and then drive to the border at midnight as decided and after reaching the location, they transfer the drugs from the supplier’s truck to their van. Stephen happens to pass by, sees the sight and helps Dax and Devin unload the drugs. In this scenario, even when Stephen never explicitly agreed to being a part of the criminal activity, his action of assisting Dax and Devin will be regarded as an implied agreement and a part of the criminal activity. Thus, based on this implied agreement, Steve can be convicted as a co-conspirator. One must read the case of Bender v. State, 253 A.2d 686 (Del. 1969) for more details.

Defenses for conspiracy

Abandonment as a general defense for conspiracy

Usually, abandonment is not considered one of the defenses for conspiracy, as the crime of conspiracy is completed as soon as the agreement is made (and this overt act is taken, where there is that requirement). Further, a subsequent abandonment will not change the fact that the defendant engaged in a criminal conspiracy. 

Even then, in order to motivate criminal conspirators to make amends to their conspiracies, the Model Penal Code [§ 5.03(6)] allows a defense of renunciation of the conspiracy.

Renunciation as a defense for conspiracy

Renunciation as a defense is allowed when the defendant ceases a planned plot to do something that is not legal, thus clearly and willingly showing that they have given up on the criminal intent.

Withdrawal

Furthermore, even though it is not a complete defense to conspiracy, withdrawal (or abandonment), this defense accomplishes two things, namely:

  1.  It does not hold the defendant liable for activities committed by co-conspirators after the defendant withdrew from participating in the criminal act. So imagine a scenario where the defendant plans to rob a bank (with one gang) but does not go ahead with the plan; however, the other gang members go ahead to execute the plan but end up shooting the bank teller while conducting the robbery. In this case, the defendant will only be held liable for conspiracy to commit robbery and not for robbery and/or murder.
  2. Secondly, when an individual decides not to be a part of conspiracy, i.e., he/she withdraws from the act, the provision in the statute of limitations will come into play, as mentioned in Smith v. United States, 568 U.S. 106, 111 (2013). So say, if the statute of limitations is three years and the defendant decides to withdraw from the conspiracy on January 1, 2020, he/she can be charged by the relevant authorities only until January 1, 2023, even when the defendant committed other crimes or continued to commit crimes in 2021 and 2022.

To successfully withdraw from a conspiracy, the defendant has to take an affirmative step to cease himself/herself from committing it, communicate the withdrawal to some other members and not participate further in the conspiracy.

Punishment for criminal conspiracy

Under common law, conspiracy is regarded as a misdemeanor. However, modern statutes have different provisions for penalizing activities that are reconsidered to be a conspiracy. While some jurisdictions levy comparatively less severe punishment for the crime if it is completed. Nonetheless, the Model Penal Code has the same punishment levied for most of the serious crimes the parties agreed to commit.

Additionally, under common law, if a conspiracy is followed by the completion of the crime, the conspiracy charge is merged with the completed crime. Thus, the defendant will only be punished for the completed crime and not for conspiracy. Let us understand this with the help of an example.

Leonard and Sheldon decide to kill Howard. If they are successful in murdering Howard, the conspiracy to commit murder will merge into a crime that is complete. So, as per the common law, Leonard and Sheldon can be penalized for murder and not the conspiracy to kill Howard, as murder outweighs conspiracy.

As per modern rules, there is no longer a need to include the merger of conspiracy into the completed crime. One must note that conspiracy is different from other inchoate offenses like solicitation and attempt. As mentioned at respective places, attempt and solicitation merges with the completed crimes. However, unlike attempt and solicitation, conspiracy does not merge into the completed criminal activity. Consequently, individuals who conspire to perpetrate a crime and then proceed to actually commit it may be held guilty and punished separately for both the conspiracy and the completed crime.

As discussed earlier, a conspiracy needs the participation of two parties, at least. So, if one of the parties does not actually get into an agreement, both the ‘conspirators’ should be set free, considering that there was no agreement as such and both parties did not give their consent to the activity. This is regarded as the ‘plurality’ requirement for conspiracy. Also, if the defendant is being tried along with other defendants for charges of conspiracy and all the other defendants are sentenced not guilty, then the defendant should also be held not guilty, as there is no way he entered into a conspiracy unless someone else agreed with him. Nonetheless, he can be held guilty if one of the defendants is convicted, because as long as there is one other possibly guilty co-conspirator, an agreement remains possible. Please refer to this case, Eyman v. Deutsch, 373 P. 2d 716 (Ariz. 1962) for more information.

In other words, if a defendant is tired of twenty other individuals and all of them are declared not guilty, then the defendant, too, shall be declared not guilty. But if one of the defendants is declared guilty, then the defendant and the last remaining co-defendant may still be held guilty because an agreement still remains possible.

Additionally, the defendant can be sentenced for conspiracy even in cases where his co-conspirators were never caught and tried for the criminal wrong. The prosecution has to provide evidence that there was an agreement between the defendant and the other party for the defendant to be convicted. Let us understand this with the help of an example. 

Leonard and Sheldon conspire to kill Howard. However, before they can actually commit the crime, Sheldon is caught and Leonard manages to escape the scene, leaving the law enforcement agencies unable to track him. If Sheldon is tried for the conspiracy to commit murder, he can be convicted as a co-conspirator, even when Leoanrd was never found and tried for the act. The only catch here is that the prosecution has to prove that Sheldon entered into an agreement with Leonard to commit the criminal activity.

Solicitation

Criminal solicitation means providing someone with some money or otherwise encouraging them to commit a criminal wrong with the intention that he/she agrees to commit the crime. Under federal law, the prosecutor has to prove the following points:

  1. The defendant had the intention that another person engages in conduct consisting of a felony crime of violence, and
  2. That the defendant commanded, induced, or otherwise endeavored to persuade the other person to commit the felony.

Criminal facilitation can be regarded as the act of assisting another individual in committing a crime; this is also a criminal activity. For instance, in Arizona, under A.R.S. § 13-1004, facilitation occurs when a person, despite being aware of the fact that another individual is committing or has an intention to commit a crime, provides another individual the chance or means to commit the offense. 

Prerequisites of criminal solicitation

An individual is said to have committed the offense of solicitation when they ask another individual to accompany them to commit a crime. With two exceptions, if any person commits a felony with the utmost intent of completing the crime, the individual who is accompanying or soliciting the other person(s) will be charged with a Class H felony. The exceptions are as follows:

  1. Firstly, when the penalty for the target crime is imprisonment for life, the individual who has accompanied/solicited in committing the crime, will be held guilty of a Class F felony.
  2. Secondly, if the target crime is a Class I felony, then the individual who has solicited the crime is also guilty of a Class I felony.

Example of solicitation

A classic example of solicitation could be hiring a gangster to kill someone on your behalf. The mere act of asking that individual to commit the crime is regarded as a criminal offense.

Some details one must know about solicitation as an inchoate offense

One has committed the crime of solicitation when a defendant instructs, encourages, induces or makes a request to another individual to either commit a criminal activity or joins hands with a defendant in committing a criminal act. As per the common law, solicitation is a misdemeanor irrespective of whether the criminal activity the defendant encouraged or requested was a misdemeanor or a felony offense.

Further, as far as the requirement of mens rea is concerned, the defendant can be held guilty of solicitation if the prosecution can prove that he acted voluntarily and with the utmost intention to cause the solicited individual to commit the criminal activity. Further, when it comes to actus reus, the only act one needs for the crime of solicitation is the advising, encouraging, inducing or requesting of another individual to participate and/or commit in the criminal activity. 

In other words, if the defendant asks or requests another individual to commit a criminal act or encourages him to do, one can say that he has committed the act of solicitation. One must note that the act of solicitation does not necessarily require that the individual who solicited the crime must actually commit the crime. One can also be held guilty of solicitation even if the person who solicited totally did not pay heed to the request. One can refer to the case of State v. Schleifer, 121 A. 805 (Conn. 1923) for further details. Let us now understand this concept with the help of an example.

Rob, out of the blue, stops Cara on the street and asks if Cara can help him rob a bank. Cara does not even reply and walks away. In this scenario, Rob would still be held guilty of solicitation because the solicitation was committed by the request that Cara help Rob with robbing the bank. The Model Penal Code has a similar definition like that of common law. Yet, unlike the common law, which calls for a less severe punishment for the offense of solicitation than one would levy for solicitation, the Model Penal Code makes solictiation punishable to the same extent as that of the solicited crime. 

If the defendant assists (solicits) another individual in committing a crime and the individual he solicits actually commits the crime, the defendant will become an accessory before the fact, and he (defendant) can also be held guilty for both the acts, i.e., the act of solicitation (participation in the criminal activity) and his role as an accessory.

Further, one must also note that the solicitation or participation of an individual in committing a crime activity will ‘merge’ with the completed crime. So, an individual cannot be held guilty for soliciting a particular crime or the completed criminal act.

When it comes to attempting solicitation to commit a crime, it can be regarded as a less severe offense in comparison to the completed crime. Thus, if a defendant is put on trial for committing a murder, he cannot be put on trial again for soliciting someone to commit that same murder all over again. As the degree of offense is lesser when it comes to solicitation, trying the defendant for both offenses will violate the ‘double jeopardy’ clause as stated in the Fifth Amendment, which says a defendant should not be punished twice for the same offense.

Other inchoate crimes

Other inchoate crimes involve aiding, assisting or motivating another individual to participate in criminal behavior. Even though criminal results may or may not occur, these activities are regarded as inchoate offenses considering the fact that they do not require criminal action from the side of the defendant for him/her to be guilty. One must take note that these crimes can, as they often do, occur together with other inchoate crimes, like conspiracy. Let us take a look at some other inchoate crimes.

Incitement

Incitement can be regarded as the crime of motivating or instigating an individual to commit a criminal activity. The crime of incitement only criminalizes the encouragement of imminent unlawful action and not the encouragement of an illegitimate act at some indefinite time in the future. In accordance with the First Amendment, which protects freedom of speech, the US Supreme Court held in the case of  Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), that the encouragement of any illegal activity at some indefinite time in the future is constitutionally protected speech. But this rule does not safeguard individuals who took part in the planning of the offense, as freedom of speech does not protect conspiracy to commit a crime.

Obstruction of justice

The term ‘obstruction of justice’ is defined as “interference with the orderly administration of law and justice”, as per the Black Law Dictionary. This term can take many forms, like:

  1. Lying under oath,
  2. Tampering with evidence,
  3. Bribing a judicial officer, etc.

This crime intends to focus on the intended effect of an act rather than the act itself. Hence, acts that may sound harmless, like the destruction of evidence, can also be considered criminal wrong if they have the intended effect of obstructing justice. Further, the prosecutor does not necessarily have to prove actual obstruction, as the attempt of the defendant to obstruct the same is enough. So, phone calls, memos or even recorded conversations can be specifically useful for establishing intent to obstruct justice.

General rules: a must-know detail

  1. The above three categories act as a defense to a charge of criminal attempt, criminal solicitation or criminal conspiracy in case the defendant (or their attorney) can prove that he/she abandoned the intention to commit the crime, halted or halted/intercepted the commission of that act or convinced the co-conspirators to refrain from committing the crime. 
  2. The general rule is that inchoate offenses are felonies that are one degree less (serious) than that of the actual crime (the one that is fully completed, say, attempted murder and the murder itself). Another instance could be a burglary of a house/dwelling. This is a second degree felony that attracts a penalty of up to 15 years in prison, whereas an attempted burglary of a place or a dwelling would be regarded as a third degree felony that attracts a penalty of 5 years of jail time. There are several statutory exceptions to this general rule. They are as follows:

Unraveling the general rules of inchoate offenses

Mentioned below are some of the general principles one should know about inchoate offenses:

  1. No individual can be charged with two offenses, i.e., an inchoate offense and the actual offense, at the same time. For instance, an individual cannot be charged with attempting a murder as well as the actual crime, i.e., the murder itself. The accused can only be charged with one of the above offenses at a time. However, that individual can be charged with murder and conspiracy to commit murder at the same time, as conspiracy is an exception to the common rule. Similarly, the individual can be charged with murder and conspiracy to commit murder at the same time.
  2. Further, for an individual to be held guilty of an inchoate offense, it is crucial to prove that such an individual had the specific intent (mens rea) behind contributing to the actual offense.
  3. Furthermore, inchoate offenses must involve some outward action or a substantial step in completing the crime, i.e., the individual committing such an act or offense must do so in furtherance of that crime.

Accessory to a Crime, Aiding and Abetting: a must know information

Both aiding and abetting are serious crimes by themselves. If one aids and abets someone to rob a gas station, he/she will be charged with the offense of robbery. Aiding and abetting is an inchoate offense that is applicable to people who, while usually not there at the place of crime itself, may have assisted the crime in some way or other, either before or after the fact. Further, aiding and abetting mandates that the person had the intention to help in the commission of the crime. However, aiding and abetting are oftentimes used interchangeably, but they have different meanings, and so does accessory. Let us read about them now.

Aiding

Aiding means helping another person in their efforts to commit the crime.

Abetting

Abetting means encouraging another person to commit the offense.

Point to be noted: Any defendant who solicits a wrong that is ultimately completed may be charged with aiding and abetting.

Accessory

An accessory after the fact is an individual who- being aware that a criminal activity has been committed- receives, comforts, or helps the offender to impede or prevent their arrest, trial, or punishment. Simply put, an individual who aids and abets a crime is also known as an accessory to the crime. The punishment could range anywhere between fines and imprisonment.

Please note: Any person who is merely present while a crime has occurred but does not participate in the crime, will not be considered an accomplice to the crime.

In other words, an accessory can be said to be someone who assists another person while committing a crime but does not necessarily participate as a principal (the main character/offender). One can distinguish a principal from an accessory by ascertaining whether the defendant independently contributed towards causing the actus reus or merely provided limited assistance or encouragement. One must note that an accomplice is different from an accessory, as an accomplice is present at the scene when the crime occurred and is subjected to prosecution even if the principal is not charged, whereas, an accessory is usually absent from the scene where the crime took place and often receives less severe punishment than an accomplice or principal.

It matters why you did not do it: a must know piece of information

The key distinction between an inchoate offense and simply adhering to the rules or legislation of the state lies in why the defendant did not commit the target crime. One can be said to be guilty of committing an inchoate offense if he/she tries to achieve or commit the target crime or tries to assist someone to committing such a crime and gets caught red-handed. Say, one person plots a plan to rob a bank but they do not because they got arrested when their roommate learned about the plan and informed the police officials about the planned robbery. The former person will be held guilty of committing an inchoate offense. Further, in the above scenario, if the person was robbing the bank because he/she was broke but had a change of heart before executing or working on the details of the crime and borrowed money from a friend, then, he/she is not guilty of any crime.

In other words, abandonment is a compelling defense to charges of an inchoate offense. To use such a defense, an individual has to prove that they abandoned their attempts to commit the target crime or that they backed out of participating in the conspiracy long before the target crime occurred. For instance, one’s phone might have information or correspondence where a drug deal (purchase and resale) was discussed; however, the person backed off from the operation before any drugs were brought or sold. In this case, the person has to prove that the recent communication with the co-defendants happened a long time ago before the target offense (in this case, the drug deal) occurred. The person can also be held not guilty of committing an inchoate offense if the evidence simply does not clearly provide proof that there was an attempt to commit the target offense.

Penalties for inchoate offenses

Before we discuss the penalties for inchoate offenses (or criminal solicitation, criminal attempt and criminal conspiracy), they vary from state to state in the United States. 

Solicitation 

When it comes to solicitation, the type of offense an individual solicits another to commit should have an effect on the penalty. A point must be taken into consideration that, solicitation of criminal conduct will not be punished in a more severe manner than the offense that the defendant solicited.

Conspiracy

When it comes to conspiracy, the penalty is ascertained by the crime committed, which is the ultimate aim of the conspiracy. The more severe the crime (i.e., the object of solicitation) or the goal of the attempt to commit conspiracy, the more severe the punishment will be. Many times, the punishment an individual faces for playing a role in the conspiracy will be based on the punishments that are imposed for conviction of the underlying offense.

Attempt

Generally, when an attempted crime is committed, the individual doing so will be punished less severely than the completed criminal offense. For instance, in California, an individual will be sentenced to half of the actual crime when it is completed. So, if the actual crime is penalized for a particular term of imprisonment either in state prison or county jail, say, about 12 years, then the individual held guilty of an attempt to commit the same crime will be punished by 1/2 the jail term; in this instance, about 6 years either in state prison or county jail.

Exceptions to attempt: a state-wise perspective

California 

The exception to the above rule is in California, where there is a penalty for attempted first degree murder, or wilful, deliberate and premeditated murder. In California, the penalty for attempted first degree murder is imprisonment with the possibility of parole. Moreover, if an individual is held guilty of an attempted crime for which the maximum sentence is life imprisonment or even the death penalty, then the individual will be punished with imprisonment in state prison for either 5, 7 or 9 years.

Florida

In Florida, the manner in which the offender will be punished for attempt, solicitation and conspiracy may depend on how severe the underlying offense is. Usually, since the charges of attempt, solicitation and conspiracy are one step below the complete criminal activity, they will be penalized accordingly (i.e., one degree less than the complete crime). Let us understand this with the help of some examples:

  1. In case the underlying offense is a capital felony, i.e., such an offense can be penalized by death, then the attempt, conspiracy or solicitation will be regarded as a first degree felony and will be punished in the same manner.
  2. In another instance, if the underlying offense is regarded as first degree felony or life felony, i.e., such an offense attracts a life imprisonment; then the attempt, solicitation, or conspiracy will be regarded as a second-degree felony.

Please note: There are a few exceptions to this scheme in the state of Florida. Say, for instance, that if the intended crime is burglary, which is a third degree felony, then the attempt, solicitation, or conspiracy charge is also a third-degree felony.

In most of the states in the US,  members of a conspiracy are criminally liable for all wrongs that are committed in furtherance of the conspiracy; so, if an individual drives the get-away car in a bank robbery, they can also be held criminally liable for murdering the bank teller, an act that was perpetrated by a co-conspirator while robbing the bank. So, even if the individual who drove the get-away car argues that all they did was get into the car and drive it, their contention will not help them either while the trial is being conducted or when they are sentenced with a penalty for such an offense. The individual can/may receive the same punishment as the co-conspirator who pulled the trigger to shoot and kill the bank teller.

Defenses to inchoate crimes

As we know, the state or the lawmakers or prosecutors for that matter, do not take the act of inchoate offense lightly, nor do they relax the charges simply because the offense was not successfully completed. This is when defenses come into play. Fortunately, there are numerous legal defenses available when an individual has been accused of committing an inchoate or incomplete crime. However, one must note that under US criminal law, these defenses depend on the law of the state wherein a crime was committed and where the individual was charged and prosecuted. The most common defenses are as follows:

Legal impossibility

If the defendant acts or has an intention to commit such a criminal activity, even if he/she has achieved the same, he or she will not be held guilty of the crime if the same is not regarded as a crime (under any circumstances). For instance, a hunter shoots at a deer but misses his aim, but almost ends up hitting another hunter. In this case, the hunter could argue the legal impossibility angle if he was charged with attempted murder, as while he was shooting with his gun, he only had the intention of shooting the deer and not the other hunter, thus this is not a crime.

Withdrawal from a conspiracy

It is crucial to know and understand that a co-conspirator will be held guilty of committing an offense in furtherance of a conspiracy, even if the co-conspirator did not commit the offenses or had any intention for that offense to take place.

  • The fact that a co-conspirator withdrew from the conspiracy may be a defense to offenses committed as a part of the conspiracy. However, for the defense to apply, the co-conspirator has to ensure that he/she takes a step back before any act in furtherance of the conspiracy has been perpetrated.
  • Further, the co-conspirator has to take affirmative steps to defeat the conspiracy. For instance, the co-conspirator can inform the local authorities or police officials before the criminal activity takes place or could make an attempt to obstruct actions to be taken by the remaining conspirators in furtherance of their conspiracy.

Abandonment

A defendant or his/her lawyer may also argue that he/she or the client abandoned his/her/their efforts to commit a crime and did not do anything or take any steps to conspire or commit the crime. Abandonment, as a defense, mandates that the individual entirely and willingly stop taking steps or actions to commit the actual crime.

Feigned agreement

As a defense for charges of conspiracy, an individual who is accused of such an act may try to depict that the agreement made to commit that wrongful activity was untrue, feigned or fake. This will nullify the element of specific intent that is important for an actual crime to be completed. Nonetheless, if the defendant enters into an agreement to engage in illegitimate activity with an undercover police officer, he/she may still be held guilty and punished for conspiracy.

Mistake of law for conspiracy

Conspiracy can be defined as an agreement to commit a particular crime, the plan being made with the utmost intention to complete the crime. So, in case the defendant actually had the belief that they were in reality, committing an act that is legally acceptable, then it can be argued that the defendant did not have the intention to commit the crime. It is crucial to note that such a defense will work only on specific intent crimes and not otherwise.

Further, defendants have the burden of proving an affirmative defense. An affirmative defense is an act wherein the burden of proof for a defense lies on the defendant and he/she must prove that they meet the criteria for that defense. Say, for instance, if a defendant wants to use the defense of a mistake of law, he/she or their lawyer will have to persuade a jury that they were under the impression that the act was lawful, and thus the defendant did not have the specific intent element involved.

Factual impossibility

The defense of factual impossibility is applicable in situations where it makes it impossible to achieve or complete the intended crime. Say, for example, if a person intends to commit arson and buys all the supplies to commit the act (like fuel, lighter, etc.), but the same property is demolished the next day, he can argue the defense of factual impossibility in case charges of attempted arson are levied upon them. In most US states, factual impossibility is not a defense, as courts rely on the fact that the individual still had the intention to commit the crime itself.

Some other defenses

Defenses to incomplete crimes (attempt, solicitation and conspiracy) are explored as used in criminal prosecution by considering several angles, like-

  1. alibi,
  2. infancy, 
  3. insanity, 
  4. involuntary intoxication, 
  5. necessity or duress, and 
  6. self-defense. 

Other legal defenses used are also given attention; they are as follows:

  1. consent (by the victim of the crime),
  2. defense of others, 
  3. defense of property, 
  4. public duty,
  5. mistake of fact, and 
  6. mistake of law.

Inchoate offenses: a state-wise perspective

Mentioned below is a depiction of how attempt, solicitation and conspiracy are looked at as punishments in some states of the USA.

New York

In New York, too, inchoate defenses are categorized into three types and each of them implicates a different class of criminal activity and each of them is regarded as a separate crime.   

Attempt (Article 110)

Under Article 110 of the New York Penal Law (NYPL), ‘attempt’ takes place when an individual takes steps to commit a particular crime but is not successful in completing the crime.

For instance, an individual may be charged with attempted burglary if they break into a house with the intention to rob some precious items but get caught before the theft is committed. The individual committing such a criminal act will face punishment depending on the severity of the crime. The punishment can range from Class B misdemeanors to Class A felonies.

Solicitation (Article 100)

Under Article 100 of the NYPL, solicitation occurs when an individual entices, advises, or commands another individual to perform a criminal activity, regardless of whether the other individual acts on the request or not. Depending on the severity of the offense, the punishment for solicitation can range from a Class B misdemeanor to a Class D felony.

Conspiracy (Article 105)

Article 105 of the NYPL, describes the elements of conspiracy, ranging from the least severe degree (conspiracy in the sixth degree) to the highest (conspiracy in the first degree). The severity of the charge depends on various factors, including:

  1. The level of the intended crime, 
  2. The number and age of co-conspirators, and 
  3. The presence of other aggravating circumstances.

Florida

In Florida, inchoate offenses are categorized into three categories, which are as follows:

Attempt [Fla. Stat. 777.04(1)]

Under Fla. Stat. 777.04(1), any individual who makes an attempt to do something that is against the law and, in such an act, does anything related to the commission of such an offense but is not successful in the perpetration of that crime or if the act is stopped or aborted by someone, then the individual commits the offense of criminal attempt. In other words, criminal attempt includes the act of an adult who, with the intention of committing a wrong that is forbidden by law, allures, seduces, coaxes, or induces a child who is under the age of 12 to perform any activity that is forbidden by law.  

Solicitation [Fla. Stat. 777.04(2)]

Under Fla. Stat. 777.04(2), any individual who accompanies or solicits another person in committing an offense or an activity that is forbidden by law and during such an activity “commands, encourages, hires, or requests” another individual to engage in an activity that would constitute such offense or an attempt to commit such offense is said to have committed the offense of criminal solicitation.

Conspiracy [Fla. Stat. 777.04(3)]

Under Fla. Stat. 777.04(3), any individual who “agrees, conspires, combines, or confederates” with another individual(s) to commit any wrong is said to have committed the offense of criminal conspiracy.

Chicago

Attempt

In Chicago, an individual may be charged with attempt if the prosecutor has reasons to believe that he/she had the intention to commit a particular crime and took the necessary steps toward the commission of that offense. However, the charges depend on the intensity and intention of the crime thus committed. An individual convicted of attempt may face imprisonment, a fine, or, at times, both. For instance, an attempt to commit first degree murder is a Class X felony and may attract a penalty between 20 and 80 years.

Solicitation

An individual may be charged with solicitation if the prosecutor provides evidence that he/she commanded, encouraged, or requested another individual to commit a criminal activity with the intent that the crime was actually committed by them. The punishment for solicitation may increase significantly in the case of murder, as such an act attracts a penalty of Class X felony, wherein a person can be charged between 15 and 30 years of imprisonment. Then, if an individual is convicted of murder for hire, meaning he/she agreed to exchange money or other valuable items for the murder, he/she may face imprisonment between 20 and 40 years.

Conspiracy

An individual may face conspiracy charges if the prosecutor has reasons to believe that he/she and at least one other individual agreed to commit a criminal wrong and then acted in furtherance of the planned activity. Conspiracy may be charged as a misdemeanor all the way up to a Class X felony, depending on the severity of the planned offense.

Illinois

In Illionis, inchoate offenses are defined under 720 ILCS 5 Title III- Specific Offenses

Attempt (Sec. 8-4.)

An individual is said to have committed the offense of attempt when he/she with the intention to commit the specific offense, he or she does any act that constitutes a substantial step toward the commission of that offense.

Penalty for attempt

Any individual held guilty of an attempt charge will be sentenced to imprisonment or fine, at times, both. And the penalty will not exceed the maximum penalty for the attempted offense. However, there is an exception to an attempt to commit the offense defined in Section 33A-2.

Solicitation (Sec. 8-1.)

In Illinois, under Section 720 ILCS 5/8-1, solicitation and solicitation of murder are discussed.

Solicitation

Part A of the Section states that any individual will be charged with committing the offense of solicitation if, with an intention to commit the offense (other than first degree murder), they have commanded, encouraged, or requested another individual to commit that offense.

Penalty for solicitation

An individual who has been charged with solicitation may face imprisonment or may be asked to pay a fine; at times, he/she may be sentenced to both. However, the punishment must not exceed the maximum penalty provided for the offense solicited, the only exception being that the penalty shall not exceed the corresponding maximum limit provided by subparagraph (c) of Section 8-4.

Solicitation of murder

Under Part B of the same Section, an individual can be said to have committed the offense of murder if he/she commits solicitation with the intent that the offense of first degree murder has to be committed.

Penalty for solicitation of murder

Solicitation of murder is regarded as a Class X felony and any individual held guilty of such an offense may face imprisonment of not less than 15 years and not more than 30 years. However, there is an exception that states that if the person held guilty of solicitation is under the age of 17, he/she shall have to face imprisonment between 20 and 60 years.

Conspiracy

An individual is said to have committed the offense of conspiracy when he/she agrees with another individual to intentionally commit an offense. However, no individual can be said to be guilty of conspiracy unless there is evidence that claims that an act in furtherance of that agreement was committed by him/her or by a co-conspirator.

Penalty for conspiracy

The penalty for conspiracy ranges from a Class X felony to a misdemeanor. Let’s take a look at each of them.
Class X felony

An individual will be charged with committing a Class X felony in the following cases:

  1. An aggravated insurance company fraud conspiracy when the individual is the organizer of the conspiracy.
  2. Aggravated governmental entity insurance fraud conspiracy when the individual is an organizer of the conspiracy.
Class 1 felony

An individual will be charged with committing a Class 1 felony in the following cases:

  1. First degree murder,
  2. Aggravated insurance fraud or aggravated governmental insurance fraud.
Class 2 felony

An individual will be charged with committing a Class 2 felony in the following cases:

  1. A person convicted of conspiracy to commit insurance fraud.
  2. Governmental entity insurance fraud.
Class 3 felony

An individual will be charged with committing a Class 3 felony in the following cases:

  1. Soliciting for a prostitute;           
  2. Pandering;        
  3. Keeping a place of prostitution;           
  4. Pimping;
  5. Unlawful use of weapons under Section 24-1(a)(1);
  6. Unlawful use of weapons under Section 24-1(a)(7);
  7. Gambling;           
  8. Keeping a gambling place;
  9. Registration of federal gambling stamps violation;            
  10. Look-alike substances violation;           
  11. Miscellaneous controlled substance violations under Section 406(b);
  12. An inchoate offense related to any of the principal offenses.
Class 4 felony

An individual will be charged with committing a Class 4 felony in the following cases:

  1. Conspiracy against civil rights is regarded as a Class 4 felony for a first offense.
  2.  Conspiracy against civil rights is regarded as a Class 2 felony for a second or subsequent offense.
Misdemeanor

For an individual charged with a misdemeanor, he/she may be sentenced to imprisonment or a fine, and at times, both. However, the penalty should not go beyond the maximum punishment given for an offense that is the object of the conspiracy.

Texas

In Texas, inchoate offenses are discussed under Chapter 15 of the Texas Penal Code

Attempt (§ 15.01)

Under § 15.01., any individual who commits a criminal wrong with the specific intent to do so and has performed an act that amounts to more than just preparation for the criminal act but does not succeed in committing it has committed the offense of criminal attempt. Further, if an individual attempts a criminal wrong that may be aggravated, his behavior will be regarded as an attempt to commit the aggravated offense in case if an aggravating element accompanies the attempt. Additionally, by stating that an attempted offense was actually carried out, the defendant cannot use it as a defense to being prosecuted for a criminal attempt. Further, one must note that, an offense under this provision is one level lower than the offense attempted. And if the offense attempted falls under the category of a state jail felony, then the offense is regarded as a Class A misdemeanor.

Solicitation (§ 15.03)

An individual is said to have committed the offense if, he/she with the intention of a capital felony or felony for the first degree committed, he or she requests, commands or attempts to instigate or persuade another person to engage in specific conduct that, under the circumstances surrounding his conduct as the individual believes them to be, would constitute the felony or involve the other party in its commission. Further, an individual may not be declared guilty under this section based on any uncorroborated testimony of the individual who allegedly solicited the offense. Only if the circumstances strongly support both the solicitation itself and the actor’s intent for the other person to act on the solicitation. Additionally, one cannot use the defense of solicitation, if:

  1. The individual solicited is not legally liable for the felony solicited.
  2. The individual solicited has been acquitted, has not been prosecuted or convicted, or is convicted of a different offense or of another type or class of offense, or is immune from prosecution.
  3. The actor belongs to a class of people who are legally not capable of committing the offense by definition of the felony solicited on an individual level.
  4. The felony solicited was actually committed.

Furthermore, under this Section is:

  1. A felony of the first degree if the offense solicited is a capital offense;  or
  2. A felony of the second degree if the offense solicited is a felony of the first degree.

Conspiracy  (§ 15.02)

An individual is said to have engaged in criminal conspiracy if, with the intention that a felony be committed, if:

  1. He/she agrees with one or more people that they, or anyone amongst them, engaged in conduct that would be regarded as an offense; and
  2. He/she or one or more of them, performed an overt act as part of the agreement.

Further, an agreement constituting a conspiracy can be inferred from the activities of other parties thus involved. Further, one cannot consider it a valid defense in a criminal conspiracy prosecution when:

  1. One or more of the co-conspirators is not criminally liable for the object offense.
  2. One or more of the coconspirators has been acquitted as long as two or more coconspirators have not been acquitted.
  3. One or more of the coconspirators has not been punished or has been found guilty, was convicted of a different offense, or is immune from prosecution.
  4. The individual belongs to a class of people, that, by the definition of the object offense, is legally not capable of committing the intended offense in an individual capacity.
  5. The intended offense was actually committed. 

Further, an offense in accordance with this Section will be regarded as a category lower than the most serious felony that is the object of the conspiracy. Furthermore, if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor.

Conclusion

People are usually under the pretext that if they plan to commit a crime or offense but are not actually successful in it, they will not be held liable or penalized for their activity. However, such a notion is erroneous and the individual committing the crime will be held guilty of committing ‘inchoate offenses’. An inchoate (meaning incomplete) offense can be said to be a criminal activity that was anticipated or prepared for but whose attempt was not successful. Such offenses include- 

  1. Criminal attempt,
  2. Criminal solicitation, and
  3. Criminal conspiracy.

The types of inchoate offenses are committed before and while preparing for the substantive offense. Also, inchoate offenses are separate and distinct offenses, even though the main offense would not have been achieved completely. Typically, the inchoate offense is regarded as severe as the actual offense, and whether or not they combine or stay separate when it comes to penalizing them can vary depending on several circumstances, like the provision in that state, the severity of the crime, etc.

Please note: The above definitions are fairly broad and there are several elements that a state attorney in the US must prove to successfully convict an accused under these statutes. So, if you or someone you know has been arrested and charged with commission of any offense, they must consult an attorney who is well-versed with the laws of the state the accused is charged in.

Frequently Asked Questions (FAQs)

What makes something an inchoate crime?

A criminal activity can be regarded as an inchoate offense when the individual(s) had the intention to commit a targeted crime. Thus, an act cannot be regarded as an inchoate offense if the person committed it mistakenly in the lead up to a targeted crime. Here, the legal concept of mens rea (guilty mind) comes into play and also defines the concept of intent.

What is an example of an inchoate offense?

Well, there are many instances discussed above related to inchoate offenses. However, a quick instance of an inchoate offense will be that of attempted arson. Here, the guilty party, who made an attempt to set a property on fire (arson) but did not succeed in executing the same, would be a necessary detail in an inchoate crime.

What is a target crime?

A target crime is a crime that the defendant was trying to commit or helped someone commit. So, if a person is charged with the offense of attempted burglary, then the target crime will be attempted burglary.

Does one need or have to consult a lawyer to help or defend them if and when they are charged with the offense of committing an inchoate offense?

If an individual is charged with solicitation, conspiracy or an attempted crime, he/she may have numerous alternatives to choose from when it comes to defending himself/herself. It will always be beneficial if one seeks help or consults a criminal defense lawyer to defend them. One must also note that criminal laws can vary from state to state so the lawyer one chooses must be well-acquainted with the laws of the state in which the person is charged.

What are the three categories of inchoate offenses?

The three categories of inchoate offenses are as follows:

  1. Criminal attempt,
  2. Criminal solicitation, and
  3. Criminal conspiracy.

Here, criminal solicitation means offering another individual some funds to participate in a criminal activity.

How do prosecutors prove that the defendant has committed an inchoate offense?

To hold someone guilty and convict an individual (the defendant) in a particular case that involves inchoate offenses, prosecutors look for clues that will act as evidence that the defendant had his/her hands involved in plotting the offense. For instance, if an individual drives a car to a bank with the gun in his car or carries the gun to the bank, for that matter, it will not constitute an attempted bank robbery. In some cases, it is illegitimate to leave a gun in the car when one visits the bank or even takes it inside the bank. So, evidence of attempted bank robbery may involve communications with accomplices or repeated trips to the bank for no reason other than to develop your strategy for the robbery. Further, one can be held guilty of attempted bank robbery in case the bank robbery was halted or did not succeed when a security guard stopped the act or the person (committing the robbery) lost the courage to perform the act when he noticed the number of CCTV cameras in the bank.

What is an abandonment defense?

One can establish a reasonable doubt on the guilt of inchoate defense, if one successfully manages to demonstrate that he/she voluntarily abandoned engaging in criminal activity before facing the imminent danger of getting caught. For instance, if three friends decide and make an attempt to rob a bank, and one of the friends speaks about it several months before the attempted robbery, i.e., when the plan was being plotted or was at the initial stage, meaning that the friend voluntarily walked away from the crime long before it happened, and the other friends went forward without the one who withdrew from engaging in the criminal activity.

Is it easy to get a plea deal in the case of an inchoate offense?

When it comes to conspiracy cases, there are several defendants and prosecutors want you to vow against the co-defendants or against those conspirators who are yet to be charged or even investigated for committing the alleged criminal activity. Further, prosecutors may be willing to reduce the sentence, give a light sentence or even grant immunity to the defendants if they are assisted in furnishing any new and relevant information about any complex criminal operation that is being carried out somewhere.

References


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