Students' Page > Criminal Law > Unit 4

Uncompleted Crimes: Attempt, Conspiracy, and Solicitation

Inchoate Offenses

  • So far, we have been talking about completed crimes.
  • This unit will deal with the idea that it is also a crime to start a crime and not finish it.
  • These incomplete crimes are called inchoate offenses.

Three Inchoate Offenses

    There are three basic types of offenses based on uncompleted crimes:

  1. Attempt: Attempting to commit a crime
  2. Conspiracy: Agreeing with someone to commit a crime
  3. Solicitation: Trying to get someone to commit a crime

The Common Thread

Each inchoate offense has its own elements, but they all share the mens rea of purpose.

Specifically, they share the specific intent to commit the crime and the actus reus of taking some steps toward fulfilling the criminal purpose but not enough steps to complete the crime.

The Balancing Act

  • Who far should criminal law go to prevent crime by punishing people who have not accomplished their criminal purpose?
  • We only want to punish people for what they actually do, not what they think or might do.
  • We also believe that "an ounce of prevention is worth a pound of cure."
  • We balance limiting criminal liability to what people do and setting free people who are determined to commit crimes in the following ways:
  1. Requiring a specific intent to commit the crime.
  2. Requiring some act toward completing the crime.
  3. Punishing inchoate offenses less severely than completed crimes.

Attempt

  • The debate on whether or not to punish attempts and how severely to punish them has been going on for thousands of years.
  • Plato is one of the earliest advocates of punishing one who attempts a crime as if he or she had completed the crime.
  • The common law followed the maxim, "the will shall be taken for the deed."
  • Mere intent was not enough—you had to take substantial steps toward completing the crime, and some harm had to result.
  • By the nineteenth century, the idea of a resulting harm was put aside:
  • "All attempts whatever to commit indictable offenses, whether felonies or misdemeanors …are misdemeanors, unless by some special statutory enactment they are subject to special punishment."

Theories of Criminal Attempt

    Two basic theories underlie criminal attempt laws.

  1. One focuses on actus reus, aiming to punish dangerous conduct.
  2. The other focuses on mens rea, aiming at dangerous persons

 

  • The states that follow the dangerous conduct rationale look at how close the defendant came to completing the crime.
  • The dangerous person rationale concentrates not on how close defendants came to completing their plans but on how fully they have developed their criminal designs.
  • Both rationales measure dangerousness according to action:
  • The dangerous conduct rationale does so to establish closeness to completion; the dangerous person rationale to gauge development of design.

Elements of Attempt

    Attempt liability boils down to three elements:

  1. Intent to commit a specific crime
  2. Act or acts to carry out the intent
  3. Failure to complete the crime

 

  • Most states don’t define attempted murder, attempted robber, attempted rape, etc., in separate statutes.
  • Most states use a general attempt statute.
  • A typical general attempt statute might read something like "Any person who shall attempt to commit any offense prohibited by law shall be punished."

Attempt Mens Rea

Attempt is a crime of purpose; it requires specific intent.

There are no reckless, negligent, or strict liability attempts.

Attempt Actus Reus

  • Criminal attempt doesn’t require completion of the crime, but mere preparation to commit a crime isn’t a criminal attempt.
  • If you sit in your room plotting to kill someone, then get up and walk out to your car in order to buy a gun and then say to yourself, "what am I thinking? I can’t kill him," and do no more, you haven't committed a crime.
  • Attempt law determines at which point on the spectrum between mere intention and completed crime an attempt to commit a crime has taken place.
  • Criminal attempt requires action or steps that go beyond plotting and preparation.
  • However, jurisdictions differ when distinguishing between preparation and attempt.
  • Some states require only "some steps", while others require "all but the last act."
  • Most states require "substantial steps," the test suggested in the Model Penal Code.
  • In all of these tests, if you stand over your enemy on the verge of pulling the trigger, you’ve committed attempted murder.
  • Most jurisdictions require considerably less.

Four Tests

  • If you leave your house only to buy a pistol to do the job, you’ve merely prepared to murder.
  • Courts distinguish mere preparation from criminal attempt according to four tests:
  • 1) Physical proximity doctrine, 2) probable distance approach, 3) equivocality approach, and 4) substantial steps (model penal code standard)

Physical Proximity Doctrine

Focuses on time, space, and the number of necessary acts remaining to complete the crime.

The easiest point at which to justify criminal liability is when the attempter has taken all but the last act necessary to complete the crime.

This doctrine considers dangerous conduct, not dangerous people.

According to this doctrine, attempt is punished when it reaches a "dangerous proximity to success."

Probable Distance Approach

Considers whether an act in the ordinary course of events would lead to the commission of the crime but for some timely interference.

Acts must pass the point where ordinary law-abiding citizens would think better of what they are about to do and desist from going further.

Arkansas Statute Annotated § 5-3-204. Renunciation

(a) It is an affirmative defense to a prosecution under § 5-3-201(a)(2) or (b) that the defendant abandons his efforts to commit the offense, thereby preventing its commission, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose. The establishment of this affirmative defense does not, however, affect the liability of an accomplice who does not join in the abandonment or prevention.

Conspiracy

At common law, conspiracy is a combination between two or more persons formed for the purpose of doing either an unlawful act or a lawful act by unlawful means.

Two Elements

1.  Actus Reus: an agreement or combination

2.  Mens Rea: the purpose of attaining either

A. An unlawful objective

B. A lawful objective by unlawful means

Conspiracy Actus Reus

  • In conspiracy, the actus reus is an agreement.
  • There need be no written formal agreement—conspirators rarely put their agreements in writing.
  • In most jurisdictions, the agreement alone satisfies the conspiracy actus reus requirement.
  • Some jurisdictions, however, require "some act" or "any act."
  • Federal law requires an "act to effect the object of the conspiracy."

Conspiracy Mens Rea

Conspiracy mens rea has never been clearly defined, and is a very vague concept.

Just what is required to prove it depends largely on the individual courts.

Objective of the Conspiracy

  • What objective does the law require conspiratorial agreements to have?
  • Some states include only felonies, others include felonies and misdemeanors, some include all "unlawful acts," even civil wrongs.
  • Some go so far as to include any act "injurious to public health, morals, trade, and commerce."

Parties to the Conspiracy

At common law and in most jurisdictions today, a conspiracy requires two or more parties to the agreement.

The criminal law punishes conspiracies in part because group offenses threaten more danger than offenses committed by individuals.

Wharton’s Rule

For a crime that requires two or more persons (bigamy, bribery, incest, gambling, etc.), the state must prove that three or more persons agreed to commit the offense.

Example: a police officer agrees to take money in exchange for not arresting someone—there is no conspiracy because the crime of bribery requires two persons. Had the officers partner agreed to take part of the money, then it would be bribery.

Some jurisdictions have abolished Wharton’s rule on the ground that whether or not the completed offense requires more than one party, the danger the actor poses to society justifies making the effort criminal—the Model Penal Code takes this stance.

"Wheel" Conspiracies

  • One or more defendants participate in every transaction.
  • These participants make up the hub of the wheel conspiracy.
  • Others participate in only one transaction—the spokes of the wheel

"Chain" Conspiracies

  • Chain conspiracies usually involve the distribution of some commodity, such as illegal drugs.
  • In chain conspiracies, participants at one end of the chain may known nothing of each other, but every participant handles the same commodity at different points, such as manufacture, distribution, and sales.

Failure to Convict Accomplice is no Defense

Failure to convict one party does not prevent conviction of other parties to conspiracies.

The War on Drugs

Conspiracy is an important part of the "arsenal" of the "war on drugs" that most states and the federal government have waged since the early 1900s.

RICO

The racketeer Influenced and Corrupt Organizations Act (RICO) is an important conspiracy law designed to fight organized crime.

Racketeering activity includes any act chargeable under state and federal law, including murder, kidnapping, bribery, drug dealing, theft, extortion, and securities fraud.

ASA § 5-3-401. Conduct constituting conspiracy

A person conspires to commit an offense if with the purpose of promoting or facilitating the commission of any criminal offense:

(1) He agrees with another person or other persons:

(A) That one (1) or more of them will engage in conduct that constitutes that offense; or

(B) That he will aid in the planning or commission of that criminal offense; and

(2) He or another person with whom he conspires does any overt act in pursuance of the conspiracy.

Elsey v. State, 47 Ark. 572, 2 S.W. 337 (1886)

A conspiracy to commit a felony was merged in the felony when committed; after the felony was consummated, the conspiracy was not indictable.

§ 5-3-402. Scope of conspiratorial relationship

If a person knows or could reasonably expect that one with whom he conspires has himself conspired or will conspire with another to commit the same criminal offense, he shall be deemed to have conspired with the other, whether or not he knows the other's identity.

§ 5-3-403. Multiple criminal objectives

If a person conspires to commit a number of criminal offenses, he commits only one (1) conspiracy if the multiple offenses are the object of the same agreement or continuous conspiratorial relationship.

§ 5-3-404. Classification

Criminal conspiracy is a:

   (1) Class A felony if an object of the conspiracy is commission of capital murder, treason, or a Class Y felony;

   (2) Class B felony if an object of the conspiracy is commission of a Class A felony;

   (3) Class C felony if an object of the conspiracy is commission of a Class B felony;

   (4) Class D felony if an object of the conspiracy is commission of a Class C felony;

   (5) Class A misdemeanor if an object of the conspiracy is commission of a Class D felony or an unclassified felony;

   (6) Class B misdemeanor if an object of the conspiracy is commission of a Class A misdemeanor;

   (7) Class C misdemeanor if an object of the conspiracy is commission of a Class B misdemeanor.

§ 5-3-405. Renunciation of criminal purpose

It is an affirmative defense to a prosecution for conspiracy to commit an offense that the defendant:

(1) Thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of his criminal purpose; or

(2) Terminated his participation in the conspiracy and:

(A) Gave timely warning to appropriate law enforcement authorities; or

(B) Otherwise made a substantial effort to prevent the commission of the offense, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.

Solicitation

Of the inchoate offenses we’ve discussed, solicitation is the most removed from its underlying crime.

At common law, and under most state laws, solicitation is a command, urging, or request to a third person to commit a crime.

Actus Reus

  • Solicitation consists of words, but the law imprecisely prescribes what words qualify as the actus reus of solicitation.
  • Courts generally agree that statements favoring or approving of a crime don’t amount to solicitation.
  • Example: it sure would be great if someone shot that terrorist.
  • Courts demand some sort of inducement.
  • Uttering the proper inducement accompanied by the required mens rea constitutes solicitation.
  • In other words, criminal solicitation consists of the effort to engage another in crime, whether or not the inducement ever ripens into a compete crime.
  • The law considers those who encourage crimes as sufficiently dangerous to punish.

Does Addressing Crowds Qualify?

Some courts have ruled that public exhortations to audiences suffice.

One speaker was convicted for urging his audience to commit murder and robbery.

Methods of Communication

Soliciting is a crime even if the solicitor does not personally communicate the inducement, and despite the inducement’s failure to reach its object.

Hence, if I send a letter to my hoped-for collaborator, offering him $30,000 to kill my wife, I have solicited murder even if the letter gets lost in the mail.

The Underlying Crime

Some states restrict the objective in solicitation to felonies; in some cases to violent felonies.

In other jurisdictions, it’s a crime to solicit another to commit any crime, whether felony, misdemeanor, or violation.

Mens Rea

Solicitation mens rea requires purpose or specific intent.

The words in a solicitation must convey the author’s intention to induce another to commit the substantive offense.

§ 5-3-301. Conduct constituting solicitation -- Classification

 (a) A person solicits the commission of an offense if, with the purpose of promoting or facilitating the commission of a specific offense, he commands, urges, or requests another person to engage in specific conduct which would:

   (1) Constitute that offense;

   (2) Constitute an attempt to commit that offense;

   (3) Cause the result specified by the definition of that offense; or

   (4) Establish the other person's complicity in the commission or attempted commission of that offense.

(b) Criminal solicitation is a:

   (1) Class A felony if the offense solicited is capital murder, treason, or a Class Y felony;

   (2) Class B felony if the offense solicited is a Class A felony;

   (3) Class C felony if the offense solicited is a Class B felony;

   (4) Class D felony if the offense solicited is a Class C felony;

   (5) Class A misdemeanor if the offense solicited is a Class D felony or an unclassified felony;

   (6) Class B misdemeanor if the offense solicited is a Class A misdemeanor;

   (7) Class C misdemeanor if the offense solicited is a Class B misdemeanor;

   (8) Violation if the offense solicited is a Class C misdemeanor or an unclassified misdemeanor.

§ 5-3-302. Renunciation

It is an affirmative defense to a prosecution for criminal solicitation that the defendant prevented the commission of the offense solicited under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.

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