Chapter Eight
Inchoate Crimes: Attempt,
Conspiracy and Solicitation
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Chapter Eight Learning Objectives
• Understand how inchoate offenses punish
people for crimes they’ve started to commit
but 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
different ways inchoate offenses are
resolved.
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Learning Objectives (continued)
• Understand how liability for criminal attempt
offenses is based on two rationales: prevent
dangerous conduct and neutralizing dangerous
people.
• The mens rea of inchoate crimes is always the
purpose or specific intent to commit a specific
crime.
• The actus reus of attempt is an action that is
beyond mere preparation but not enough to
complete the crime.
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Learning Objectives (continued)
• Understand the differences between legal
impossibility, which is a defense to attempt
liability, and factual impossibility, which is
not.
• Understand that voluntary and complete
abandonment of an attempt in progress is a
defense to attempt liability in about one-half
the states. Be aware of the debate that
accounts for this dichotomy.
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Learning Objectives (continued)
• Understand that punishing conspiracy and
solicitation to commit a crime is based on
“nipping in the bud” the special danger of
group criminality.
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Inchoate Crimes
• Inchoate = to begin
• Inchoate Crimes
– Attempt
– Conspiracy
– Solicitation
• Inchoate crimes share
– Mens rea: specific intent to commit completed crime
– Actus reus: some steps toward accomplishing the
crime, 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. Require specific intent or purpose to commit the crime
or cause a harm
2. Require some action to carry out the purpose
3. 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 Rationales
1. 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 Attempt
1. Intent or purpose to commit a specific crime
2. Act 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
crime, he does an overt act toward the offense
– Specific Attempt statutes: define attempt in terms of
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
possessed 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 Rule
– Other end of spectrum: any slight thing above “Mere
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 Tests
1. Dangerous Conduct Tests
2. Dangerous Persons Tests
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Attempt Actus Reus (continued)
2 Types of Proximity Tests
1. Dangerous Conduct 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 Tests
2. Dangerous Persons 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
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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 crime
2. 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 coconspirators
– 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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