Updated March 28, 2016
When we think of criminal acts, most of the time we assume that the actor’s intentions have been carried out—the store was robbed, the check was forged. But some crimes consist of actions that fall short of the final act of commission. These crimes—attempts, conspiracy, and solicitation—are known as incomplete, or “inchoate” crimes.
Incomplete crimes fall somewhere in the middle of the “commit a crime” process, which consists of six steps:
- The actor gets the idea for the crime (killing the victim).
- The actor evaluates the idea, deciding whether to proceed.
- The actor decides to go forward with the idea.
- The actor prepares for the crime, by obtaining necessary weapons, for example.
- The actor begins the crime, and
- The actor finishes, or completes the crime.
(Jerome Hall, General Principles of the Criminal Law, 558-99 (2d ed. 1960).)
We don’t punish people for the first, second, or third steps, because we don’t criminalize having an idea and a decision alone; and we clearly we punish them for the sixth. But activity that happens in the stages in the middle, numbers four and five, is also punishable as an incomplete crime.
An attempted crime is one that wasn’t finished, which failed to achieve completion for one of two reasons:
- The defendant did everything she set out to do, but failed. For example, she decides to shoot the victim, buys the gun, follows the victim, shoots, but misses. This is known as a “complete attempt,” or
- The defendant does some of the acts needed to finish the crime, but is prevented from succeeding or decides to quit. For instance, the defendant takes the steps noted above but changes her mind at the last minute, or is prevented from continuing by the intervention of a police officer. This is known as an “incomplete” attempt.
Can one “attempt” to do every crime?
A person can be convicted of attempting to commit only certain crimes—those that require “specific intent.” Specific intent describes the defendant’s state of mind, which is to achieve the result that the criminal statute prohibits. Specific intent crimes differ from general intent crimes, which require only the intent to complete the physical act. For example:
- Murder is a specific intent crime because it requires the prosecutor to show that the defendant intended the victim to die.
- Battery is a general intent crime, because it requires only that the prosecution prove that the defendant intentionally hit the victim, not that he wanted to cause specific injury or harm.
It’s not easy to tell the difference between specific and general intent crimes. One way is to look at the statute of the crime itself: Does the definition include a requirement that the actor intends the result? Under this test, it’s clear why “receiving stolen property” is a specific intent crime, because its definition includes receiving the property knowing that it is stolen.
What must the defendant do to constitute an “attempt?”
People must take a concrete, substantial step towards furthering their intent to break the law before they will be guilty of an attempt. This is an act of perpetration (Step Four, above), not mere preparation (Step Three). So, for example, purchasing the weapon, without more, won’t expose the actor to attempted murder, but aiming it towards the victim and firing will.
How are attempts punished?
Interestingly, the crime of attempt wasn’t even a crime until the late 18th century (before that, “a miss was as good as a mile”). After that, attempts were classified as misdemeanors, but today, almost all attempts to commit a felony are themselves felonies. Attempts to commit specific felonies are often punished at half the maximum allowed for the target crime; if the target is a capital crime or carries life in prison, the attempt will be punished for a specific term of years.
Defendants who successfully complete a crime have also, in the course of their acts, attempted the crime. Logically, they’ve committed an attempt and the resulting crime. They can be charged with both, and the jury can be given both verdicts to choose from, but defendants cannot be convicted of both. In legal lingo, the attempt “merges” with the concluded crime.
The crime of conspiracy is another incomplete, or inchoate, crime. It’s an agreement, explicit or implied, among two or more people, to commit a criminal act. But it’s a very controversial crime, because its definition is so vague. Courts have struggled for years to differentiate mere ideas from agreements to break the law; there’s a real risk that people will be punished for what they say, not for what they do. Indeed, historically conspiracy laws have been used to suppress controversial activity, such as strikes and dissent against public policies.
Is a mere agreement sufficient for a conspiracy to be formed?
Historically, the state did not have to prove that the defendants did any act to further the goal of the agreement. But this led law enforcement to intervene prematurely, before anything dangerous had happened, and to target what turned out to be banter. Accordingly, modern laws require one step, however trivial, be taken by the actors toward furtherance of their goal. This is known as an “overt act,” and it need not be an attempt to further the conspiracy. For example, making a phone call pursuant to the agreement, or even attending a lawful meeting, may suffice. A single overt act taken by one member of the group suffices to prosecute every member, even members who join the conspiracy after the act has taken place.
How do prosecutors prove an agreement?
The essence of a conspiracy is a mutual agreement to commit an illegal act or series of such acts. Every member of the group need not agree to every detail of the arrangement, nor must every member agree to commit each element of the offense. It’s enough if each member agrees to commit or facilitate some of the acts that make up the target crime.
Prosecutors may establish an agreement with circumstantial evidence, from which juries can draw broad inferences as to a mutual plan. One way of identifying a conspiracy is to ask whether the resulting crime appeared to be “choreographed.” For example, imagine a car driven by Tom, in which Dick and Harry are passengers. Tom stops the car, Dick and Harry get out, leave the doors open, accost and rob the victim, jump back in the car, and Tom drives off. A jury could validly conclude that the robbery was planned by all three, who could be prosecuted for conspiracy to rob and robbery itself.
What is the punishment for conspiracy?
Unlike the crime of attempt, conspiracy does not merge into the completed target act. As shown just above, all three defendants face two charges each: conspiracy and robbery.
In a typical state statute, the punishment for conspiracy will parallel the punishment for the target crime, so that conspiring to commit a misdemeanor will be a misdemeanor; and conspiring to commit a felony will be a felony (though punished less severely than the target felony itself).
What are the defenses to conspiracy?
Defendants have offered several defenses to conspiracy charges, depending on the circumstances and the laws of their states. Here are a few of the common ones.
Abandoning the plan. Sometimes defendants change their minds and abandon the criminal plan short of accomplishing it. But a change of heart will not defeat a conspiracy conviction, because the crime is complete once the agreement is formed or, in some states, once an overt act has taken place. But if a conspirator withdraws from the plan (imagine that Dick gets out of the car but runs away), that person at least avoids liability for the completed crime.
Conspiring to commit a crime that requires the agreement of two people. Some crimes, such as adultery and bigamy, by definition require the willing cooperation of at least two people. Put another way, one person alone cannot commit these crimes, which also include dueling, selling contraband, and receiving a bribe. Many courts will not allow convictions for conspiring to commit them, but some will disallow a conspiracy conviction only when the target offense has in fact been accomplished or attempted. Interestingly, this rule disappears in some situations when more than two persons are involved in the conspiracy – the conspiracy and the target offense convictions are each allowed to stand.
Impossibility. Finally, defendants sometimes raise the issue of factual or legal impossibility as a defense to conspiracy. For example, are Jane and Carol guilty of conspiring to murder someone if the intended victim is already dead? Or, are they guilty of conspiring to steal trade secrets that turn out not to be trade secrets at all, or of conspiring to receive stolen property that isn’t really stolen? Most courts will not recognize these “impossibilities” as a defense to conspiracy.
Solicitation is another incomplete crime, consisting of inviting, requesting, commanding, hiring, or encouraging another person to commit a crime. Traditionally, one could solicit only felonies, but modern law applies to misdemeanors, too.
What must the defendant intend when soliciting a crime?
The prosecution will need to prove to the jury that the defendant intended the other person to do just what the defendant suggested. For example, a joking suggestion to harm someone, which is taken seriously by the listener, won’t rise to the crime of solicitation if the defendant can convince the jury that the words were meant in jest.
What must the defendant do to justify a conviction for solicitation?
The defendant must invite, request, and so on, but the actual target crime need not be committed, or even attempted, for the accusation of solicitation to stick. For example, if Able asks Bob to rob Victor, but Bob refuses, Able has still solicited Bob. However, if the request is never communicated, the crime may be attempted solicitation, as when Mary writes to Kay, asking Kay to perform an illegal act, but Kay never receives the letter: Here, Mary may be guilty only of attempted solicitation.
Solicitation is a very “incomplete” crime
Solicitation is perhaps the most incomplete of the three crimes discussed in this article. If the listener agrees to do the act, the two have formed a conspiracy; and if the act is accomplished or simply attempted, they become principals (responsible for the crime itself or the attempt). So, on the time-line of criminal thinking and behavior, it’s at the far end, where merely asking someone to do a criminal act, without regard to that person’s response, is criminal behavior. In a sense, a solicitation is an attempted conspiracy.