Allegations dog Chicago Police
Department's Special
Operations Section -chicagotribune.com
Inchoate Offenses
Inchoate Offenses
• Solicitation
• Conspiracy
• Attempt
Inchoate Offenses
• Anticipatory, incipient, incomplete, and preliminary
crimes are all other words for inchoate crimes, acts
that imply an inclination to commit a crime even
though the crime is never completed. The word
"inchoate" means underdeveloped or unripened.
Because of the social need to prevent crimes before
they occur, the common law long ago established
three (3) separate and distinct categories of inchoate
crimes -- the crimes of attempt, conspiracy, and
solicitation. Over the years, there have not been any
new categories added with the possible exception of
possession (as in possession of burglar tools, bomb
materials, gun arsenal, etc.) as an inchoate offense
based on the notion of preparation, which has not
normally been associated with inchoate crimes.
Inchoate Offenses
• Traditionally, inchoate crimes have always been considered
misdemeanors, but over the years they have been merged into
felonies as society has put more power in the hands of law
enforcement and prosecutors to deal with recalcitrant problems
such as organized crime, white collar crime, and drug crime.
Traditional rules that exist are: (1) a person should not be
charged with both the inchoate and choate offense, with the
exception of conspiracy which can be a separate charge; (2)
lesser penalties should ideally be imposed for inchoate crimes,
but in many cases, the penalty should be exactly the same as
for the completed offense; (3) inchoate crimes should have
specific intent, spelling out clearly what the mens rea elements
are; and (4) some overt action or substantial step should be
required in the direction of completing the crime. This set of
rules is sometimes referred to as the doctrine of inchoate
crimes.
Inchoate Offenses
• Solicitation
Inchoate Offenses
• Solicitation
– Solicitation is best thought of as a substantive crime in
itself, remote from being thought of as an attempt at a
substantive crime. Solicitation occurs when the solicitation
is made. Another way of saying this is that the crime of
solicitation is over with the asking. The crime of solicitation
is inherently incomplete (inchoate) because the law doesn't
even care if the solicitation was influential or not. It also
doesn't matter if it's a crowd or an individual being solicited,
and it's even possible to perpetrate solicitation through an
intermediary. What does matter is the thing being solicited -the crime of solicitation should be restricted to certain
serious felonies. At common law, these would be crimes
that breach the peace or obstruct justice.
Inchoate Offenses
• Solicitation
•
Solicitation (specifically the actus reus of it)
consists of words; words that create an inducement,
defined as advising, commanding, counseling,
encouraging, enticing, entreating, importunes,
incites, induces, instigates, orders, procures,
requests, solicits, or urges another to commit a
serious felony with the specific intent that the
person solicited commit the crime. This list is
sometimes called the list of proper utterances for the
crime of solicitation.
Inchoate Offenses
• Solicitation
– The elements of solicitation include:
– (1) mens rea -- not intent to commit a crime, but specific
intent to persuade someone else to commit a crime; also
not joking around or making casual comments ("I wish that
person would drop dead") but "purposely" wanting to
persuade someone.
– (2) actus reus -- words that contain some sort of
inducement; words that are on the list of proper utterances
for the crime of solicitation; uttering the words is the actus
reus, and it doesn't matter if the means of utterance is oral,
written, or electronic.
– Defenses: Impossibility of any type is the same as no
defense. Some jurisdictions allow withdrawal or
renunciation
720 ILCS 5/8-1) (from Ch. 38, par.
8-1)
Sec. 8-1. Solicitation. (a)
Elements of the offense. A person
commits solicitation when, with
intent that an offense be
committed, other than first degree
murder, he commands, encourages
or requests another to commit that
offense.
Inchoate Offenses
• CONSPIRACY
Inchoate Offenses
• Conspiracy
• The essence of conspiracy is an agreement. It
doesn't have to be a written one. Usually, it's inferred
from the facts or circumstances. What the
agreement has to be about doesn't even have to be
criminal, only "unlawful". Under some statutes, a
conspiracy can involve any act injurious to public
health, public morals, free commerce, or any act
perverting justice. Because a conspiracy by itself is
almost treated as a substantive crime in itself, this is
the only inchoate offense that the law permits a
person to be charged with in addition to the target
crime (that is, a person can be charged with both
murder and conspiracy to commit murder, e.g.).
Inchoate Offenses
• Conspiracy
•
Conspiracy is the favorite tool of prosecutors. There's a lot of
presumptions and procedural rules that favor the prosecution.
It's easy to get a conviction for conspiracy because, basically,
all the prosecutor has to do is present all the evidence and let
the judge tell the jury what test will be used to determine
whether an agreement existed. In most jurisdictions, proof of
the agreement is sufficient; no further (overt) act is required. In
jurisdictions requiring an overt act, the standard is not as high
as the law of attempt, and is basically proven by showing at
least one of the conspirators had at least the intent to commit a
substantive offense. Conspiracy is still a specific intent crime,
so "purposively" must be used, not just knowledge, although
there's a whole string of inconsistent case law that indicates
erosion in this area.
Inchoate Offenses
• CONSPIRACY
• The elements of conspiracy include:
• (1) mens rea -- a specific intent to attain a particular criminal
objective on the part of at least one person in the partnership.
Purpose can be inferred from circumstances surrounding the
combination, such as failure to keep records, clandestine
meetings, quantities involved, continuity of the relationship,
etc. There are different rules used by different jurisdictions on
the kinds of relationships that qualify:
• unilateral rule -- the idea that among a group of conspirators,
there is at least one individual with criminal intent
• bilateral rule -- the idea that one cannot conspire alone; at least
two guilty persons are required
Inchoate Offenses
• CONSPIRACY
– Defenses and Other Issues: The defenses of
impossibility and abandonment are of no use in
conspiracy law as they are considered the same
as no defense. However, some jurisdictions will
permit abandonment, but the standard is high, the
defendant has to show their complete and total
withdrawal by notifying the authorities about their
own involvement and taking steps to thwart the
conspiracy. Conspiracy doesn't recognize
anything sacrosanct about the husband-wife
relationship, and a corporation can also be
charged as a person with conspiracy if more than
one corporation is involved.
Inchoate Offenses
• CONSPIRACY
– (720 ILCS 5/8-2) (from Ch. 38, par. 8-2)
Sec. 8-2. Conspiracy.
(a) Elements of the offense. A person commits conspiracy when, with
intent that an offense be committed, he agrees with another to the
commission of that offense. No person may be convicted of conspiracy
to commit an offense unless an act in furtherance of such agreement is
alleged and proved to have been committed by him or by a
co-conspirator.
(b) Co-conspirators.
It shall not be a defense to conspiracy that the person or persons with
whom the accused is alleged to have conspired:
(1) Has not been prosecuted or convicted, or
(2) Has been convicted of a different offense, or
(3) Is not amenable to justice, or
(4) Has been acquitted, or
(5) Lacked the capacity to commit an offense.
Inchoate Offenses
• Attempt
– Criminal attempt, in many ways, is all about failure (not being a
very good criminal), for example, shooting at somebody and
missing, holding up a cash register to only find $5, stealing a CD
by taking it out of its case, stuffing it down your pants, and having
it break in half before you get out of the store (the law includes
strokes of luck in its conception of failure). The law of attempt is
also about nipping violence in the bud, so even certain words
("threats", "challenges") qualify as attempts. There's no such thing
as a crime called "attempt". Most states allow the prosecutor to
pick what the crime is that's being attempted; that is, most states
do not try to define attempted murder, attempted robbery,
attempted rape, and so forth. Most states typically have a general
attempt statute that specifies a punishment (usually the same as
for the completed offense) and allows the word "attempted" to be
placed before the target crime.
Inchoate Offenses
•
Attempt
–
–
–
–
–
–
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The elements of attempt include:
(1) specific intent -- this means that "purposely" is the only mens rea that qualifies. All
inchoate crimes are specific intent crimes, and all specific intent crimes do not allow
such states of mind as reckless, negligent, or strict liability.
(2) an overt act toward commission -- this is intended to weed out the plotters from the
perpetrators, but the standards vary widely by jurisdiction. Acts of preparation do not
count. Some places use fairly loose language like "some steps" while other places use
the more rigorous "all but last act" standard. There are at least four tests used in
various places:
physical proximity doctrine -- this focuses upon space and time, establishes the "last
act" standard which requires looking at the remaining steps
probable desistance approach -- this considers whether the attempt would naturally
lead to commission but for some timely interference not related to bad luck
equivocality approach -- this looks at whether the attempt can have no other purpose
than commission of a crime
substantial steps test -- this is a MPC-recommended approach which looks for
corroborating evidence in the form of conduct which tends to concur or verify a
criminal purpose
Inchoate Offenses
• Attempt
– (3) failure to consummate the crime -- the law looks at the
reasons why the crime failed, and in some cases, the reason
mitigates the punishment or removes the liability, as in:
– legal impossibility -- a defense that what was attempted is
not a crime (raping a mannequin, for example, because rape
requires a human victim) Prosecutors have the burden of
proving legal possibility as well as apparent ability
– factual impossibility -- a defense that some extraneous
factor or outside force made it impossible to complete the
crime; most jurisdictions will not accept this on the
presumption that "luck" doesn't count (same as no defense)
– renunciation -- this is the idea of abandonment, and to be a
successful defense, the actor must have given up for moral
reasons, not just because of the risk of apprehension
Inchoate Offenses
• Attempt
– (720 ILCS 5/8-4) (from Ch. 38, par. 8-4)
Sec. 8-4. Attempt.
(a) Elements of the Offense.
A person commits an attempt when, with intent to
commit a specific offense, he does any act which
constitutes a substantial step toward the commission
of that offense.
(b) Impossibility.
It shall not be a defense to a charge of attempt that
because of a misapprehension of the circumstances it
would have been impossible for the accused to
commit the offense attempted.
CRIMINAL OFFENSES
(720 ILCS 5/) Criminal Code of
1961.
(720 ILCS 5/Tit. III Pt. A
heading)
PART A. INCHOATE
OFFENSES
Parties to a Crime
• An accomplice is someone who knowingly,
voluntarily, and with common interest,
participates in the commission of a crime,
and can be charged with the same crime(s)
for which the accused will be tried;
complicity means association in a wrongful
act; principal means anyone involved in
committing a crime; an accessory before the
fact aids, incites, or abets but is not
physically present; an accessory after the
fact receives, comforts, relieves, or assists a
felon to avoid apprehension and conviction.
Parties to a Crime
•
In accomplice law (complicity), the statutory law
has evolved much beyond the common law, and the
case law is extensive and confusing about exactly
where the lines are drawn. Complicity is a concept
that can be abused by prosecutors. Only a few basic
restrictions exist: (1) the law does not recognize
accomplices to any misdemeanor or the crime of
treason; (2) an accomplice must normally be
physically present during commission of the crime,
but advice or words of encouragement beforehand
as well as providing material assistance afterwards
will create a liability; (3) no one can be convicted on
the uncorroborated testimony of an accomplice
alone; and (4) persons giving postcrime aid are
punished less severely than those furnishing
precrime aid.
Parties to a Crime
•
•
•
•
Being an accomplice is NOT the same as:
accessory after the fact -- this remains, in some jurisdictions, a
separate and less serious offense for giving aid and comfort
(harboring) to a fugitive. The law sees it as a separate offense because
it's really helping someone avoid arrest or escape punishment more
than helping someone commit a crime. Accessories always have a
claim to less punishment.
conspiracy -- conspiracy is a completely different crime; according to
the Pinkerton rule, a person can be charged with both conspiracy to
commit a crime and the crime itself under the law of accomplices
(Example: two people agree to commit murder, and one acts as a
lookout while the other kills somebody; both can be charged with
conspiracy to commit murder and murder itself).
facilitation or solicitation -- these are separate offenses, related to the
ideas, respectively, of making it easier for someone to commit a crime
and enticing someone to commit a crime that never occurs (Examples:
aiding a juvenile who is used in crime to limit someone's exposure to
prosecution; soliciting a prostitute; of the two, facilitation is closest to
accomplice law).
There are three (3) elements to accomplice liability:
(1) proof that someone committed the underlying crime -- it is not
necessary, however, for the government to have tried and
convicted somebody, or even that the principal is identified; proof
in this sense means probable cause that a crime was committed.
(2) actus reus -- accomplice law eases the requirement of proving
actus reus, but it does so with hard-to-define words. Words such
as "aid", "abet", "assist", "counsel", "induce" or "incite" may have
different meanings depending upon what jurisdiction you're in.
Normally, you can't be considered as an accomplice simply for
being there -- you must be constructively present -- this is known
as the Mere Presence rule, but there are exceptions in places with
Good Samaritan laws where you can be tried as an accomplice for
just standing there and watching someone get beaten, e.g.
Case law has ruled the following are examples of accomplice
actus reus:
acting as a lookout
providing guns, supplies, or instruments of crime (even under
color of financial transaction if seller is aware of purpose)
driving a getaway vehicle
sending the victim to the principal
preventing warnings from reaching the victim (but not merely
failing to disclose the occurrence of a crime to authorities)
(3) mens rea -- this is the element that it all boils down to in
obtaining a conviction for being an accomplice. All the words
used in accomplice law ("abet" for example) carry an implication
of purposive attitude toward the crime. Other courts have held to a
less strict standard than "purposively" (even thought the MPC
recommends this only) such as "knowingly" but still other courts
have allowed "recklessly".
Case law has ruled the following are examples of
accomplice mens rea:
an intent that the crime be committed; an affirmative
desire to see it done
knowledge that they are contributing to the
commission of a crime, knowing that the outcome
would have a dangerous result or criminal
consequences
recklessness and negligence under such
circumstances as to indirectly benefit or share in the
financial proceeds of the crime; a "stake" in the
outcome
There are three (3) ways to offer a defense to the crime
of being an accomplice:
(1) Mistake of fact -- this is not the same as "I didn't
know it was a crime" (mistake of law) but a mistake of
fact good faith claim because of the way a person
perceives the world and makes reasoned judgments
(2) Abandonment -- the complicity was abandoned in a
timely manner; the accomplice terminated their
participation either completely or in part such as to
deprive the principal of effectiveness at committing the
crime; "I didn't help so they could get caught and learn
their lesson"
(3) Withdrawal -- the complicity was repudiated
voluntarily (not merely because of a fear of getting
caught); "I didn't help because it was wrong"; some
attempts are made to neutralize or thwart the crime
such as by notifying authorities
(720 ILCS 5/Art. 5 heading)
ARTICLE 5. PARTIES TO
CRIME