Chapter Eight

Inchoate Crimes: Attempt, Conspiracy and Solicitation

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Chapter Eight Learning Objectives

• Understand how inchoate offenses punish punish people for crimes they’ve started to commit people for crimes they’ve started to commit but have not finished committingbut have not finished committing. Inchoate offenses require some action but not enough to complete the crime intended.

• Appreciate the dilemma inchoate offenses present to free societies and know the three three different ways inchoate offenses are different ways inchoate offenses are resolvedresolved.

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Learning Objectives (continued)

• Understand how liability for criminal attempt offenses is based on two rationales: prevent two rationales: prevent dangerous conductdangerous conduct and neutralizing dangerous neutralizing dangerous peoplepeople.

• The mens rea of inchoate crimes is always the purpose or specific intent to commit a specific specific intent to commit a specific crimecrime.

• The actus reus of attempt is an action that is actus reus of attempt is an action that is beyond mere preparation beyond mere preparation but not enough to complete the crime.

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Learning Objectives (continued)

• Understand the differences between legal legal impossibilityimpossibility, which is a defense to attempt liability, and factual impossibilityfactual impossibility, which is not.

• Understand that voluntary and complete voluntary and complete abandonment of an attempt in progress is a abandonment of an attempt in progress is a defense to attempt liability in about one-half defense to attempt liability in about one-half the statesthe states. Be aware of the debate that accounts for this dichotomy.

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Learning Objectives (continued)

• Understand that punishing conspiracy and punishing conspiracy and solicitation to commit a crime is based on solicitation to commit a crime is based on “nipping in the bud”“nipping in the bud” the special danger of group criminality.

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Inchoate Crimes

• Inchoate = to beginto begin• Inchoate Crimes – AttemptAttempt– ConspiracyConspiracy– SolicitationSolicitation

• Inchoate crimes share– Mens rea: specific intentspecific intent to commit completed crime– Actus reus: some steps toward accomplishing the some steps toward accomplishing the

crimecrime, but not enough steps

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Inchoate offenses• Look to general part of the criminal law to find the

provisions regarding inchoate crimes—regardless of what the intended crime is.

• Dilemma– No harm yet done– person is determined to commit a crime

• Resolving dilemma by 3 means:1.1. RequireRequire specific intent specific intent or purpose to commit the crime or

cause a harm2.2. Require some action to carry out the purposeRequire some action to carry out the purpose3.3. Punish inchoate crimes less severely Punish inchoate crimes less severely than completed

crimes

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Attempt• History– By 1600 common law courts began to develop

doctrine of attempt law– By 1700s common law courts had created law of

attempt• Rex v. Scofield (1784)

– “intent may make an act, innocent in itself, criminal; nor is the completion of an act, criminal in itself, necessary to constitute criminality.”

– By 1800s: All attempts whatever to commit indictable offenses, whether felonies or misdemeanors are misdemeanors, unless by some special statutory enactment they are subjected to special punishment

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Attempt (continued)

• 2 Rationales2 Rationales1. Focus on dangerous acts• Looks at how closely the defendants came to

completing their crimes• Aims to prevent harm from dangerous conduct

2. Focus on dangerous persons • Looks at how fully defendants have developed their

criminal purpose• Aims at neutralizing persons

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Elements of Attempt Law

• Elements of Attempt1.1. IntentIntent or purpose to commit a specific crime2.2. Act or acts to carry out the intentAct or acts to carry out the intent

• Two types of attempt statutes– General attempt statute: person is guilty of attempt

to commit a crime if, with intent to commit the with intent to commit the crime, he does an overt act toward the offensecrime, he does an overt act toward the offense

– Specific Attempt statutes: define attempt in terms define attempt in terms of specific crimesof specific crimes (attempted murder, attempted robbery)

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Attempt (continued)

• Attempt Mens Rea– All attempt crimes require the purpose of

engaging in criminal conduct or causing a criminal result

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People v. Kimball (1981)Summary of case holding

• Court examined facts to determine whether it was clearly erroneous (standard of review) for the trial court to find that there was sufficient evidence to prove defendant had the requisite intent to attempt to commit unarmed robbery.

• The appeals court did find that the defendant The appeals court did find that the defendant possessed the requisite intentpossessed the requisite intent…however, the court reversed because the defendant was not allowed to prove that he voluntarily abandoned his attempt to rob the store (Abandonment will be discussed in a following section of the chapter)

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Attempt Actus Reus

• Continuum of what is required to commit an attempt.– One end of spectrum: Last Proximate Act RuleLast Proximate Act Rule– Other end of spectrum: any slight thing above “Mere any slight thing above “Mere

Preparation”Preparation” (mere preparation is not an attempt under any approach)

– Jurisdictions vary tremendously in what constitutes the actus reus for attempt, check the statute• Different “tests” aren’t mutually exclusive, rather they are

efforts to describe the acts that are enough to fall within the spectrum

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Attempt Actus Reus (continued)2 Types of Proximity Tests2 Types of Proximity Tests

1.1.Dangerous Dangerous ConductConduct Tests Tests

2.2.Dangerous Dangerous PersonsPersons Tests Tests

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Attempt Actus Reus (continued)2 Types of Proximity Tests2 Types of Proximity Tests

1.1.Dangerous Dangerous ConductConduct Tests Tests– Dangerous Proximity to Success aka Physical

Proximity Test–• dangerous proximity to success.• did actor come dangerously close to committing crime• Focus on what actors still have to do to carry out their

purpose– Example: People v. Rizzo (1927)

– Indispensible element test• Has person gotten everything they need to complete

the crime– Example: Attempt to sell Ecstasy.

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Attempt Actus Reus (continued)2 Types of Proximity Tests2 Types of Proximity Tests

2.2.Dangerous Dangerous PersonsPersons Tests Tests– Unequivocality (res ipsa loquiter) test

• Act speaks for itself– Would ordinary person who saw defendant’s acts without

knowing her intent believe the person intended to commit the crime?

• Stop the film test– Example: State v. Stewart (1988)

– Probable desistance test• Defendants have gone far enough toward completing the crime if

it is unlikely they will turn back

– Substantial steps test • Model Penal Code 16

MPC Substantial Steps test

• Actus reus of attempt under MPC two elements:– Substantial steps toward completing the crime– Steps that strongly corroborate the actor’s

criminal purpose. • List of things that constitute substantial steps:

– Lying in wait, Enticing victim, “casing” the site, unlawful entry, possession of special tools designed for illegal purposes, solicitation of another to participate…

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Young v. State (1985)Summary of case holding

• Court examined the facts presented in this case to determine whether defendant had committed an overt act beyond mere preparation in furtherance of the intended crime (bank robbery). Noted that the person had to sufficiently manifest their dangerousness. Examined the several approaches and adopted the Model Penal Code approach.

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People v. Rizzo (1927)Summary of case holding

• Court looked at the statute which required acts tending toward the commission of the proposed crime, and the defendants’ behavior in driving around looking for a person they intended to rob

• “The law must be practical, and therefore considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for the timely interference.”

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Commonwealth v. Peaslee (1901)Summary of case holding

• “A mere collection and preparation of materials in a room, for the purpose of setting fire to them, unaccompanied by any present intent to set the fire, would be too remote and not all but the “last act” necessary to complete the crime.”

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Impossibility: Defense to Attempt

• Legal impossibility (a valid defense)– Actors intend to commit crimes, and do everything

they can to carry out their criminal intent, but the law doesn’t ban what they did

– Requires different law to complete the crime• Factual impossibility (not a valid defense) – Actors intend to commit a crime and try to commit

the crime but some extraneous factor interrupts them to prevent the completion of the crime

– Requires different facts to complete the crime

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State v Damms (1960)Summary of case holding

• Court determined that the gun being unloaded fell within the statutory meaning of “an intervention of some other extraneous factor.” It concluded that it did. (Thus, factual impossibility, not legal impossibility, and no valid defense)

• Impossibility not apparent to the actor should not absolve him from the offense of attempt to commit the crime he intended.

• Dissent: gun being unloaded not extraneous factor since it was in the control of the defendant

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State v. Robins (2002)Summary of case holding

• Court examined difference between legal impossibility and factual impossibility and issue of extraneous factors in determining whether defendant could be guilty of child enticement when the “13 year old child” was really the government.

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State v. Kordas (1995) Summary of case holding

• Court held that the fact that the motorcycle was not stolen was an extraneous factor, and were the facts as Kordas believed he would have committed receipt of stolen property.

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Voluntary Abandonment

• Affirmative defense to attempt liability• Must be complete• Must be a result of a change in the actors

purpose (stemming from a change of heart), not influenced by outside circumstances.

• Reappraisal of possible sanctions can prompt the change of heart, as long as the fear of the law isn’t related to the particular threat of detection (specific to this case)

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Voluntary abandonment (continued)

• Rationale– Those who renounce criminal attempts in

progress aren’t the dangerous people the law wants to punish

– Renunciation prevents what we most want to prevent, harm to victim

– Encourages criminal to give up their criminal designs; however, opponents say the defense encourages bad people to take first steps because they know they can escape punishment

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Le Barron v. State (1966)Summary of case holding

• Defendant’s overt acts established that he intended to rape the victim

• Jury could find that defendant desisted from the attempted rape after he formed intent and took the overt steps (and that her pregnancy was an extraneous factor leading to his renunciation )

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People v. Johnson (1987)Summary of case holding

• Jury was entitled to hear an instruction regarding voluntary renunciation. And if jury had believed defendant’s testimony they may have determined he had abandoned his attempt.

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Conspiracy

• Agreeing with one or more people to commit a crime

• Liability can attach to conspiracy a lot sooner than with attempt– Conspiracy law is designed to nip criminal purpose

in the bud– Conspiracy strikes at the danger of group criminal

activity

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Conspiracy Actus Reus

1. Agreement to commit a crime2. Overt act in furtherance of the agreement• Agreement doesn’t have to be in writing• There has to be a meeting of the minds• Facts and circumstances that point to an

unspoken understanding between conspirators

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Conspiracy (continued)

• Overt Act– ½ states require an overt act in furtherance of the

conspiracy– ½ states require only the agreement to constitute

actus reus– Overt acts “verify the firmness of the agreement”

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U.S. v. Garcia (1998)Summary of case holding

• “in order to prove a conspiracy, the government must present sufficient evidence to demonstrate both an overt act and an agreement to engage in the specified criminal activity….While an implicit agreement may be inferred from circumstantial evidence, proof than an individual engaged in illegal acts with others is not sufficient to demonstrate the existence of a conspiracy. Both the existence of and the individual’s connection to the conspiracy.”

• A general agreement among gang members to back each other is not sufficient evidence of a conspiracy

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Conspiracy Mens Rea

• Not clear at common law, still not clear today• Divergent and inconsistent approaches– Specific intent to commit a criminal act– Specific intent to commit a specific criminal

objective – According to former US Supreme Court Justice

Robert Jackson “The modern crime of conspiracy is so vague that it almost defies definition”

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Parties to Conspiracy• Traditional approach– Two or more must agree to complete a crime– The parties need to have actual agreement– Problem: Undercover situation, failure to convict one

party should lead to failure to convict the others• Unilateral Approach– No requirement that parties know all of their co-

conspirators– No requirement that state prove the intent of all the

parties….Sufficient that state prove that X intended to enter an agreement with Y to commit a crime…Conspiracy exists even if Y doesn’t really mean to go through with it (undercover officer example)

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Large Scale Conspiracies

• Wheel Conspiracies: – One or more defendants participate in every

transaction (the hubs)– Others participate in only one transaction (the spokes)– Example:

• Ed conspires with Sam to illegally sell his motor home. • Ed conspires with Fred to illegally sell his motor home. • Ed is the hub and Sam/Fred are spokes. • Sam and Fred don’t need to know of each other or come to an

agreement amongst themselves.

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Large-Scale Conspiracies

• Chain Conspiracies – Participants at one end of the conspiracy may

know nothing of those at the other end– Every participant handles the same commodity at

different points• Examples:

– U.S. v. Bruno (1939)– Narcotics smugglers, purchasers, middlemen

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Criminal Objective

• Scope of criminal objective may vary from narrow to broad

• Vague definition leads to wide prosecutorial discretion (some might claim abuse):

• In the face of minimal evidence, prosecute conspiracy rather than the underlying crime?

• Media attention to conspiracy

• Some states efforts have narrow conspiracy elements• Model Penal Code—adopted the overt act

requirement plus requirement that the mens rea include purposeful conduct to carry out the objective of the agreement

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Racketeer Influenced and Corrupt Organizations Act (RICO)

• Grew out of need to deal with organized crime

• Enhanced penalties for criminal enterprises• Racketeering activity encompasses a lot of

different types of behaviors• Used for mobs and the extended to other

white collar crimes, now used for gang activity

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Solicitation

• Trying to get someone else to commit a crime• Solicitation Actus Reus – Statements made as inducement to commit crime

• Advises, commands, counsels, encourages, entices, entreats, importunes, incites, instigates, procures, requests, solicits, urges

– Effort to get another to commit a crime

• Inducement that doesn’t reach its object may qualify – Such as a letter offering money for a murder as in State v. Schleifer (1923)

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Solicitation (continued)

• Solicitation Mens Rea– Specific intent– Purpose to commit a specific crime

• Criminal Objective– Some states limit solicitation to soliciting felonies– Others limit to violent felonies

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State v. Cotton (1990)Summary of case holding

• State statute omitted the Model Penal Code language concerning uncommunicated solicitations—this shows that legislative intent (for that state) is that solicitation crime requires some form of actual communication from the defendant to either an intermediary or the person intended to be solicited.

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