Inchoate Crimes

Inchoate liability reflects prevention and culpability. A person who intentionally takes serious steps toward crime has revealed dangerousness and blameworthiness even if the final result does not occur. A failed murderer may be just as culpable as a successful murderer. A conspiracy may create special danger because group criminal activity increases planning, confidence, and likelihood of completion.

At the same time, criminal law must be careful. The law generally does not punish thoughts alone. A person may imagine committing a crime, feel angry, or daydream about wrongdoing. That is not enough. Inchoate crimes require some legally recognized external step: a request, an agreement, or conduct moving toward the target offense.

The tension is constant. Punish too late, and the law cannot prevent serious harm. Punish too early, and the law risks punishing fantasy, preparation, or ambiguous conduct.

Attempt generally requires two things: intent to commit the target crime and an act that goes far enough toward commission.

Attempt is a specific-intent crime. This is one of the most important rules in the chapter. The defendant must intend to commit the target offense. Even if the completed offense can be committed recklessly or negligently, attempt usually requires purpose or specific intent to bring about the criminal result.

Suppose a defendant fires a gun at a victim intending to kill, but misses. That is attempted murder. The defendant intended the result and took a substantial act toward causing it.

Now suppose a defendant drives recklessly through a crowd and nearly kills someone, but no one dies. The defendant may be guilty of reckless endangerment or another completed offense, but attempted murder is more difficult unless the prosecution can prove intent to kill. Recklessness alone usually does not establish attempt to commit an intentional killing.

The hardest attempt issue is the act requirement. Criminal law must decide how close the defendant must come to completing the target crime before attempt liability begins.

Mere preparation is not enough. Buying supplies, thinking about a plan, researching a location, or talking vaguely about crime may be preparatory. But at some point, preparation becomes execution. Different legal tests draw that line differently.

The last-act test asks whether the defendant did the last act necessary to commit the crime. This is a strict test. If the defendant has not yet done everything needed, attempt may not be established. For example, pointing a loaded gun but being stopped before pulling the trigger may fail under the strictest version of the last-act test, even though most modern courts would treat the conduct as attempt.

The dangerous-proximity test asks whether the defendant came dangerously close to completing the crime. This test considers how near the defendant was to success. A defendant standing outside a bank with a disguise may be preparing; a defendant entering the bank, displaying a weapon, and demanding money is dangerously close.

The probable-desistance test asks whether the defendant’s conduct reached a point where the crime probably would have occurred unless interrupted. This test focuses on whether ordinary events would likely have led to completion.

The unequivocality test, sometimes called the res ipsa loquitur test in attempt law, asks whether the defendant’s conduct clearly manifests criminal intent. The question is whether the acts themselves speak clearly enough to show the criminal purpose.

The Model Penal Code uses the substantial-step test. It asks whether the defendant took a substantial step strongly corroborative of criminal purpose. This test generally allows earlier intervention than the last-act or dangerous-proximity tests, but it still requires conduct that confirms the criminal intent.

The line between preparation and attempt is a classic exam issue. Consider a defendant who decides to rob a jewelry store. The defendant buys gloves, studies the store schedule, obtains a fake license plate, and writes a plan. Those facts show preparation and intent, but perhaps not attempt.

Now add more facts. The defendant drives to the store at closing time with a loaded gun, mask, and bag; parks outside; walks to the door; and reaches for the handle before police intervene. Under the substantial-step test, attempt is much stronger. The conduct is no longer merely planning. It strongly corroborates the purpose to rob.

Different tests may produce different answers. Under a last-act test, the prosecution may have difficulty until the defendant enters and demands property. Under the MPC substantial-step test, arriving armed and disguised at the target location may be enough.

A strong exam answer identifies the governing test if supplied. If no test is supplied, discuss the plausible approaches and explain which facts show preparation and which show execution.

Impossibility arises when the defendant intends to commit a crime but completion cannot occur because of some factual or legal problem.

Factual impossibility is usually not a defense to attempt. Factual impossibility means the crime could have been committed if the facts were as the defendant believed them to be, but unknown circumstances made completion impossible.

Suppose a defendant reaches into a victim’s empty pocket intending to steal a wallet. The defendant may be guilty of attempted larceny even though the wallet was not there. The failure is factual. The defendant intended theft and took action toward it.

Suppose a defendant shoots into a bed intending to kill the victim, but the victim is not in the bed. That is factual impossibility. Attempt liability remains likely.

Legal impossibility may be a defense where the completed act would not actually be a crime, even if the defendant thought it was. Suppose a person imports a product believing it is illegal, but the product is actually lawful. If the intended completed conduct is not criminal, traditional legal impossibility may defeat attempt.

Modern law often limits the legal impossibility defense. The Model Penal Code largely rejects impossibility when the defendant’s conduct would be criminal if the circumstances were as the defendant believed them to be. The focus shifts to the defendant’s dangerous purpose and conduct.

Abandonment asks whether a defendant who begins an attempt can avoid liability by giving up.

At common law, abandonment traditionally was not a defense once attempt was complete. If the defendant had already crossed the attempt line, later change of heart did not erase the crime. The law punished the dangerous step already taken.

The Model Penal Code is more generous. It may allow renunciation if the defendant voluntarily and completely abandons the criminal purpose. The renunciation must be genuine. It is not voluntary if the defendant stops because of fear of detection, increased difficulty, unexpected resistance, or a decision to wait for a better opportunity. It is not complete if the defendant merely postpones the crime or shifts to another victim.

Suppose a defendant goes to a warehouse intending to burn it down, pours gasoline near the wall, lights a match, then suddenly feels remorse, extinguishes the match, cleans the area, and leaves. Under the MPC, abandonment may be argued if the renunciation was voluntary and complete. Under traditional common law, the attempt may already have occurred.

Now suppose the defendant leaves only because police sirens are heard nearby. That is not voluntary renunciation. Fear of detection does not show a true change of heart.

Solicitation is asking, encouraging, commanding, requesting, or urging another person to commit a crime, with intent that the person commit it.

Solicitation is complete when the request is made. The person solicited does not need to agree. The person does not need to act. The target crime does not need to occur. This is why solicitation is often overlooked. Students think, “Nothing happened.” But in law, the criminal request itself may be the completed solicitation.

Suppose Dana says to Lee, “I will pay you $5,000 to burn down my warehouse for insurance money.” If Dana intends Lee to commit arson, Dana has likely committed solicitation as soon as the request is communicated. If Lee refuses immediately, solicitation still occurred.

The required mental state is intent that the solicited crime be committed. Joking, fantasy, or ambiguous venting is not enough unless the facts show a genuine criminal request and purpose.

Solicitation may be merged into later offenses. If the person solicited agrees, conspiracy may follow. If the crime is attempted or completed, the solicitation may merge into the more advanced offense under many rules.

Conspiracy is an agreement between two or more persons to commit a crime, with intent to agree and intent that the crime be committed. Many jurisdictions also require an overt act in furtherance of the conspiracy.

The agreement may be express or implied. Criminals rarely sign written contracts. Agreement may be proven by coordinated conduct, communications, shared planning, division of roles, repeated cooperation, or other circumstantial evidence.

The conspirators do not need to know every detail. They do not need to know every member. But they must share the criminal objective. A person who unknowingly helps criminals without understanding the plan may lack the required intent.

For example, if two people agree to rob a store and one buys masks while the other obtains a getaway car, conspiracy is likely. The agreement plus overt act, if required, is enough even if the robbery never occurs.

Many jurisdictions require an overt act in furtherance of the conspiracy. The overt act need not itself be criminal. It may be minor. Buying supplies, renting a car, calling a co-conspirator, scouting a location, or purchasing tools may satisfy the requirement if done to advance the plan.

The overt-act requirement shows that the conspiracy has moved beyond mere talk. But it is usually easier to satisfy than attempt’s act requirement. Conspiracy can be complete much earlier than attempt.

Suppose Alex and Blake agree to commit burglary next week. Blake buys a flashlight for the burglary. That small step may satisfy the overt-act requirement. It might not be enough for attempted burglary, but it can be enough for conspiracy.

Traditional conspiracy followed a bilateral approach. Under this view, at least two actual guilty minds must agree. If one person only pretends to agree, there is no true agreement between two culpable parties.

The Model Penal Code and some modern statutes use a unilateral approach. Under this view, a defendant may be guilty if the defendant believes he is agreeing with another person to commit a crime, even if the other person is an undercover officer pretending to agree.

Suppose Dana tells an undercover officer, “Let’s rob the bank,” and the officer pretends to agree. Under the bilateral approach, Dana may not be guilty of conspiracy because there is no second guilty mind. Dana may still be guilty of solicitation or attempt if the facts support it. Under the unilateral approach, Dana can be guilty of conspiracy because Dana believed an agreement existed and intended the crime.

This distinction is highly testable because undercover operations are common in conspiracy problems.

Conspiracy liability depends on the scope of the agreement. A person is not automatically part of every crime committed by every person in a broader criminal network. The prosecution must prove the defendant agreed to the criminal objective.

Some conspiracies are small and direct: two people agree to rob one store. Others are larger and more complex: drug distribution networks, fraud schemes, or organized theft rings.

Students should look for the defendant’s knowledge, role, stake in the venture, repeated dealings, and whether the defendant intended to further the larger criminal purpose. Mere association with criminals is not conspiracy. Mere knowledge that someone else may commit a crime is not always enough. Agreement and intent are essential.

Under the Pinkerton doctrine, a conspirator may be liable for substantive crimes committed by co-conspirators if those crimes were committed in furtherance of the conspiracy and were reasonably foreseeable.

This doctrine is powerful. It extends liability beyond the defendant’s own acts. A conspirator who never personally carries a gun may be liable for a co-conspirator’s gun offense if it was in furtherance of the agreed robbery and reasonably foreseeable.

Suppose three people conspire to rob a bank. One conspirator waits in the car. Another enters the bank and assaults a guard during the robbery. Under Pinkerton, the getaway driver may be liable for the assault if it was in furtherance of the robbery and reasonably foreseeable.

Pinkerton liability is controversial because it can punish defendants for acts they did not personally commit, intend, or even know about. The limiting principles are important: the co-conspirator’s crime must be in furtherance of the conspiracy and reasonably foreseeable.

Withdrawal from conspiracy may affect future liability, but it usually does not erase the conspiracy already committed.

Because conspiracy is complete when the agreement is formed and any required overt act occurs, later withdrawal generally does not undo liability for the conspiracy itself. However, withdrawal may cut off liability for later crimes committed by co-conspirators if the defendant communicates withdrawal in time.

The defendant must usually take affirmative steps inconsistent with the conspiracy. This may require notifying co-conspirators of withdrawal, informing law enforcement, or taking steps to neutralize prior assistance, depending on the jurisdiction and context.

Suppose a defendant joins a robbery conspiracy, then before the robbery tells the others, “I am out,” retrieves the weapon he supplied, and warns police. That may support withdrawal and cut off liability for future crimes. If the defendant merely stays home without telling anyone, withdrawal is weaker.

Withdrawal must be timely. A defendant cannot wait until after the crime is complete and then claim withdrawal.

Merger determines whether one offense is absorbed into another.

Solicitation and attempt may merge into the completed offense. A defendant usually cannot be convicted of both attempted robbery and the completed robbery for the same criminal act. Once the target crime is completed, the attempt is absorbed. Similarly, solicitation may merge into the completed crime or into conspiracy if the solicited person agrees, depending on the jurisdiction.

Conspiracy generally does not merge with the completed offense. A defendant may be convicted of both conspiracy to commit robbery and the completed robbery. The reason is that conspiracy is treated as a separate social danger: group agreement to commit crime.

For example, if two people agree to rob a store and then rob it, they may be guilty of conspiracy and robbery. The conspiracy does not disappear merely because the robbery was completed.

Attempt, solicitation, and conspiracy often appear together, but they punish different conduct.

Solicitation requires a request. It is complete when the defendant asks another to commit a crime with the required intent.

Conspiracy requires agreement. It is complete when the agreement forms, plus an overt act if required.

Attempt requires action toward commission. It is complete when the defendant, with intent, takes a legally sufficient step toward the target offense.

The same facts may support all three. A defendant asks a friend to burn a warehouse. That is solicitation. The friend agrees. That is conspiracy. The friend buys gasoline and goes to the warehouse. Depending on the test, that may become attempted arson. If the warehouse burns, the completed arson occurs, and merger issues arise.

Dana likely committed solicitation when Dana asked Lee to burn the warehouse. The crime was complete even before Lee responded.

Dana and Lee likely formed a conspiracy when Lee agreed to commit arson. If the jurisdiction requires an overt act, Lee’s purchase of gasoline or travel to the warehouse likely satisfies that requirement.

Attempted arson depends on the applicable test. Under the MPC substantial-step test, buying gasoline, going to the target location, and approaching with matches may be strongly corroborative of criminal purpose. Under a dangerous-proximity test, the result may depend on how close Lee was to starting the fire. Under a last-act test, attempt may be harder because Lee had not yet ignited anything.

If Lee committed other crimes in furtherance of the conspiracy, Dana might face Pinkerton liability if those crimes were reasonably foreseeable and in furtherance of the conspiracy.

If Lee changed his mind voluntarily before reaching the warehouse, abandonment might be argued under the MPC if complete and voluntary. But if Lee stopped only because police arrived, renunciation would fail.