Inchoate crimes are crimes where liability attached even though the crime may not have been completed. They generally involve at least taking a substantial step towards committing a crime, preparing to commit a crime or seeking to commit a crime. Two common examples are attempt and conspiracy, but inchoate crimes also include being an accomplice or an accessory to a crime, incitement, criminal facilitation and solicitation.
Attempt
An attempt occurs when a person, with the intent to commit a crime, takes a substantial step towards completing a crime, but the final result does not occur. Generally, the punishment for an attempted crime is less than the punishment for the completed crime,[1] though the punishment does vary depending on the statutory schemes and sentencing procedures of the jurisdiction.
Attempt has two elements: (1) criminal intent and (2) an act constituting a “substantial step” toward completion of the underlying crime. The Model Penal Code defines attempt as “acting with the kind of culpability otherwise required for commission of the crime, he:
– purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
– when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing the result; or
– purposely does or omits to do something which, under the circumstances as he believes them to be, constitutes a substantial step in a course of conduct planned to culminate in his commission of the crime.”[2]
Please note that not every state follows the rules of the Model Penal Code. Individual state statutes may provide their own definitions for the crime of attempt. For example, Alabama defined attempt as “with the intent to commit a specific offense, he does any overt act towards the commission of such offense.[3]” Oregon defined attempt as “intentionally engaging in conduct which constitutes a substantial step toward commission of the crime.”[4]
Attempt is a specific intent crime, which means that its required mens rea is the level of “intentional.” As we discussed in Module 1, “intentional” is the most culpable mens rea state. Negligence, recklessness or even “knowing” mental states are insufficient to sustain a charge of attempt. Affirmative desire for the end result is required.
For example, in State v. Lyerla, a 1988 South Dakota case, a defendant fired shots into a truck carrying a driver and two passengers, killing the driver. The defendant was found guilty of “reckless” second-degree murder of the driver and was initially found guilty of attempted murder of the other passengers. However, the South Dakota Supreme Court held that a conviction of attempted murder was precluded because attempt requires a higher level of intent than recklessness. The court noted that “to attempt to commit a crime, there must exist in the mind of the perpetrator the specific intent to commit the acts constituting the offence. To attempt second degree murder, one must intend to have a criminally reckless state of mind… a logical impossibility.”[5]
Thinking about murdering someone or wanting to murder someone is not a crime. An “overt act” or “substantial step” is required. The crucial legal distinction is between “mere planning” and the “overt act” or “substantial step.” The line may be applied differently in different jurisdictions and by different courts.[6] Consider the following cases:
In a 1928 Missouri case, State v. Davis, a defendant hired someone (who was actually an undercover police officer) to kill another man. Though he gave pictures of the intended victim to the hit man and paid him part of his agreed-upon fee, his conviction was reversed. The Missouri Supreme Court interpreted these things are mere “preparation” and not an attempt.[7] Note that in a modern context, the defendant probably would be guilty of conspiracy to commit murder, even if not attempt.
In contrast, the Mississippi Supreme Court upheld an attempted murder conviction when the defendant requested that his hired hitman kill his victim because the defendant obtained and loaded a gun and then gave it to the hitman. Although the defendant was arrested before the intended victim arrived, giving a loaded gun to the purported shooter was enough to constitute attempted murder.[8]
To promote uniformity in the application of the definition of attempt, the Model Penal Code created the substantial steps test.[9] The test has two parts. First, a “person is guilty of an attempt to commit a crime if…he…does…anything which…is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.” Second, the defendant’s actions must be “strongly corroborative of the actor’s criminal purpose.” The Model Penal Code also provides seven examples of behavior that could constitute a substantial step so long as it “is strongly corroborative of the actor’s criminal purpose”:
- lying in wait, searching for or following the contemplated victim of the crime;
- enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;
- reconnoitering the place contemplated for the commission of the crime;
- unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
- possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;
- possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;
- soliciting an innocent agent to engage in conduct constituting an element of the crime.
The substantial step test allows an attempt conviction based on steps already performed, even when the defendant may be far from completing the substantive crime.[10] The commentary in the Model Penal Code acknowledges that the substantial step broadens attempt liability beyond many of the common-law doctrines.[11]
Defenses to Attempt
Impossibility has historically been a defense to an attempt charge in some jurisdictions under some circumstances. Though this defense has been the subject of much murky analysis,[12] the modern trend is to allow impossibility as a defense when the contemplated action is not illegal.[13] For example, if a person attempted to “illegally” purchase marijuana in Colorado, not knowing that marijuana is, in fact, legal in Colorado, that would not constitute attempt to purchase an illegal substance.
Abandonment may also constitute a defense when the defendant abandoned the effort to commit the crime “under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” However, the defense is not available if the withdrawal was merely a postponement or if the withdrawal was due to a change in circumstances that made success in the commission of the crime less likely.[14] So, for example, if a purported bank robber, after donning a mask and pulling a weapon from his pocket, sees a posse of armed police officers enter the bank and surreptitiously replaces the weapon to his pocket and quietly walks towards the door, that would not constitute abandonment.
Consider the following case:
In a trial for attempted robbery, a witness testified that she saw the defendant and another man acting suspiciously and looking in windows of homes in her neighborhood. After she watched the pair enter her neighbor’s yard, she called the police. An officer arrived and arrested the two men. The defendant noted in his confession that he was planning to rob the home, but after removing some weather-stripping from the window, changed his mind and decided to leave. The court affirmed the conviction for attempted burglary because the evidence could be interpreted to show that the defendant’s abandonment of the burglary was due to the arrival of the police. Thus, his abandonment was not voluntary.[15]
Conspiracy
A conspiracy is an agreement between two or more people to engage in unlawful conduct or commit a criminal act. While, historically, an overt act by at least one of the members in furtherance of the agreement was also required, the Supreme Court ruled that an “overt act” is not required for conviction under the federal drug conspiracy statute found in 21 U.S.C. § 846.[16] Like attempt, conspiracy is a specific intent crime, meaning that the conspirator must intend for the illegal objective to occur.
Conspirators are typically criminally responsible for every reasonably foreseeable crime committed in furtherance of the conspiracy by other members of the conspiracy.[17] This is known as the Pinkerton rule, after the Supreme Court case, Pinkerton v. United States. So, for example, if a person conspires to commit an armed bank robbery, he may be liable for murder if a robber shoots and kills a bank teller.
In determining foreseeability, though, courts may consider the degree of the defendant’s involvement. A defendant with a minor role is less likely to be found criminally responsible than a defendant with more involvement.
Where applied, the “overt act” requirement for conspiracy requires less than the overt act for attempt.[18] For example, a conspiracy may exist before a crime is actually attempted, whereas there is no criminal attempt until the required attempt is made. Consider the following example:
Joe and Sam agree to poison their roommate, William. Joe purchases the poison and Sam coats a steak with the poison and places it on William’s dinner plate. William says he’s not hungry and doesn’t eat the poisoned steak. If Joe and Sam are in a jurisdiction without an overt act requirement, they are guilty of conspiracy at the moment they agree to poison their roommate. If an overt act is required, Joe purchasing the poison was certainly an overt act in furtherance of the conspiracy. Thus, both were guilty of conspiracy to commit murder when Joe bought the poison. “Attempted” murder probably didn’t crystalize until Sam put the poisoned steak on William’s plate, or at least until he coated the steak with poison.
Confusion may arise when the crime itself requires two or more people. For example, gambling and prostitution require at least two people. Thus, the question arises of whether defendants may be convicted of gambling and conspiracy to gamble. The general rule is that criminal offenses requiring two parties cannot be the object of a conspiracy.[19] So, neither the prostitute nor the “John” are liable for conspiracy to solicit prostitution when they agree on a price for services.
Abandonment is not generally considered a defense to a charge of conspiracy because the crime of conspiracy is completed as soon as the agreement is made (and the overt act is taken, where there is that requirement).[20] Subsequent abandonment doesn’t change the fact that the defendant engaged in the criminal conspiracy.
Still, to encourage criminal conspirators to rectify the results of their conspiracies, the Model Penal Code allows a defense of renunciation of the conspiracy.[21] The defense is allowed when the defendant “thwarts the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”
Moreover, while not a complete defense to conspiracy, abandonment, or withdrawal as it’s referred to in the context of conspiracy, does accomplish at least two things. First, it “terminates the defendant’s liability for post-withdrawal acts of his co-conspirators.” So, if the defendant conspires to rob a bank but withdraws before the robbery but the others go ahead with it and kill a teller during the robbery, the defendant is guilty of conspiracy to commit robbery, but not of robbery or of murder.
Second, it starts the running of the applicable statute of limitations.[22] So, if the statute of limitations is three years and the defendant withdraws from a conspiracy on January 1, 2020, the government has until January 1, 2023 to charge the defendant, even if the other conspiracy members continued committing crimes in 2021 and 2022.
To successfully withdraw from a conspiracy, the defendant must take an affirmative step to stop his participation in the conspiracy, communicate the withdrawal to the other members and take no further part in the conspiracy.[23]
Assisting Others in Committing Crimes
Other inchoate crimes relate to helping, assisting or encouraging others to engage in criminal behavior. While these criminal results may or may not occur, these are inchoate crimes because they do not require criminal action from the defendant for him to be guilty. Note that these can, and often do, occur together with other inchoate crimes, such as conspiracy.
Criminal solicitation means offering money or otherwise inducing another to commit a crime with the intent that the person commit the crime. Under federal law, the prosecution must prove that (1) “the defendant had the intent that another person engage in conduct constituting a felony crime of violence,” and (2) “that the defendant commanded, induced, or otherwise endeavored to persuade the other person to commit the felony.”[24]
Criminal facilitation is the crime of assisting another person in the commission of a crime. In Arizona, for example, facilitation occurs when “acting with knowledge that another person is committing or intends to commit an offense, the person knowingly provides the other person with means or opportunity for the commission of the offense.”[25]
An accomplice is someone who acts as a participant during a crime, even if he takes no part in the actual offense. For example, during a robbery, the person who points the gun at the clerk and demands money is guilty of armed robbery. Everyone else involved, including as the lookout or the getaway driver, are accomplices. Accomplices are generally considered to be as guilty as the primary actor. As a practical matter, most accomplices are also part of the same criminal conspiracy as the actors and so accomplices can often be held liable under conspiracy liability rules.
Other Inchoate Crimes
An accessory is someone who assists during a crime but does not participate as a principal. Distinguishing a principal from an accessory turns on whether the defendant independently contributed to causing the actus reus or merely provided limited assistance or encouragement. An accomplice differs from an accessory in that an accomplice is present at the scene of the crime and is subject to prosecution even if the principal is not charged, while an accessory is usually not present at the scene of the crime and often receives lesser punishment than an accomplice or principal.
Incitement is the crime of encouraging or instigating another person to commit a crime. The crime of incitement only criminalizes the encouragement of imminent unlawful action, not the encouragement of unlawful action at some indefinite time in the future. As the First Amendment protects the freedom of speech, the Supreme Court has ruled that the encouragement of unlawful action at some indefinite time in the future is constitutionally protected speech. [26] This rule does not protect people taking part in the planning of the crime, as freedom of speech does not protect conspiracy to commit crimes.
Obstruction of justice is defined as any “interference with the orderly administration of law and justice.”[27] This broad prohibition means that obstruction of justice can take many forms, such as lying under oath, tampering with evidence, bribery, etc. This crime focuses on the intended effect of an act rather than the act itself. Thus, seemingly harmless acts, such as the destruction of evidence, can be considered criminal if they have the intended effect of obstructing justice. The prosecution need not prove actual obstruction as the defendant’s attempt to obstruct is enough. Phone calls, memos, or recorded conversations can be particularly useful for establishing intent to obstruct justice.
In our next module, we’ll turn to the violent crimes of homicide, assault, rape and arson.
[1] See 12 Op. Atty Gen. Ore. 257 (1925).
[2] Model Penal Code§ 5.01.
[3] Ala. Code § 13A-4-2.
[4] Or.Rev. Stat. § 161.405.
[5] State v. Lyerla, 424 N.W.2d 908, 912-13 (S.D. 1988).
[6] John S. Strahorn, Jr., “Preparation forCrime as a Criminal Attempt,” 1 Wash. & Lee L. Rev. 1, 30 (1939).
[7] State v. Davis, 319 Mo. 1222, 1229 (1928).
[8] Stokes v. State, 92 Miss. 415, 425-26 (1908).
[9]Model Penal Code § 5.01(1).
[10] See United States v. Jackson, 560 F.2d 112, 119-20 (2d Cir. 1977).
[11] See Model Penal Code § 5.01; Am. Law Inst., Model Penal Code & Commentaries Part I, § 5.01, 329–32 (1985) (describing how the substantial step test criminalizes more conduct than other tests).
[12] See Charles Doyle, “Attempt: An Overview of Federal Criminal Law,” Congressional Research Service, (Apr. 6, 2016), https://fas.org/sgp/crs/misc/R42001.pdf.
[13] See United States v. Mehanna, 735 F.3d 32, 52 (1st Cir. 2013).
[14] Model Penal Code § 5.01(4).
[15] Thomas v. State, 708 S.W.2d 861, 864 (Tex. Crim. App. 1986).
[16] UnitedStates v. Shabani, 513 U.S. 10, 15 (1994).
[17] Pinkerton v. United States, 328 U.S. 640, 46-47 (1946).
[18] See State v. Verive, 627 P.2d 721, 732-33 (Ariz. App. 1981).
[19] Ianelli v. United States,420 U.S. 770, 774 n. 5 (1975); see also People v. Purcell, 304 Ill. App. 215, 218 (1940) (holding that because the agreement to gamble necessarily involved a plurality of agents, a conspiracy charge was not appropriate.).
[20] Abandonment and Withdrawal, Justia, https://www.justia.com/criminal/defenses/abandonment/ (last visited Nov. 16, 2018).
[21] Model Penal Code § 5.03(6).
[22] Smithv. United States, 568 U.S. 106, 111 (2013).
[23] Abandonment and Withdrawal, Justia, https://www.justia.com/criminal/defenses/abandonment/(last visited Nov. 16, 2018).
[24] 1084. Elements of Solicitation, U.S. Dep’t of Justice, https://www.justice.gov/jm/criminal-resource-manual-1084-elements-solicitation (last updated Jan. 1998).
[25] A.R.S. § 13-1004.
[26] Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
[27] Black’s Law Dictionary; see also 18 U.S.C. §§ 1501-1521.