Inchoate Offenses

Introduction

Inchoate offenses are crimes that punish conduct directed toward the commission of a substantive offense but falling short of completing that offense. The principal inchoate offenses are attempt, conspiracy, and solicitation. These offenses allow law enforcement to intervene before a crime is completed and to punish the defendant’s culpable intent manifested through concrete action. The law of inchoate offenses raises fundamental questions about the relationship between intent and action in the definition of criminal conduct.

Attempt

Attempt requires a specific intent to commit a substantive offense and a substantial step toward its commission. The Model Penal Code § 5.01 defines attempt as purposely engaging in conduct that would constitute the crime if the attendant circumstances were as the actor believed them to be, or purposely doing or omitting to do anything that is a substantial step in a course of conduct planned to culminate in the commission of the crime.

The act requirement for attempt: the defendant must take actions beyond mere preparation. The MPC requires a substantial step that strongly corroborates the actor’s criminal purpose. The common law tests include the last act test (the actor has done everything necessary), the physical proximity test (the actor is dangerously close to success), and the equivocality test (the conduct unequivocally indicates criminal intent).

Impossibility

Factual impossibility —when the defendant is unable to complete the crime because of facts unknown or beyond their control—is not a defense to attempt. A pickpocket who reaches into an empty pocket may be convicted of attempted theft. Legal impossibility —when the intended conduct is not actually criminal—is a defense. If a person believes they are receiving stolen goods but the goods are not stolen, that is factual impossibility and not a defense. If a person believes their conduct is illegal but the law does not prohibit it, that is legal impossibility and a defense.

The MPC abolishes the impossibility defense, providing that a person may be convicted of attempt even if completing the crime was impossible under the attendant circumstances. The focus under the MPC is on the defendant’s intent and conduct, not on whether completion was possible.

Conspiracy

Conspiracy is an agreement between two or more persons to commit a crime, coupled with an intent to achieve the agreement’s objective. Under the MPC § 5.03, conspiracy requires an intent to promote or facilitate the commission of a crime and an agreement with another person to commit it. Conspiracy is an inchoate offense that punishes the agreement itself, independent of any action to carry it out.

Many jurisdictions require an overt act in furtherance of the conspiracy, though the act need not be substantial. Under federal law, 18 USC § 371 requires an overt act for most conspiracy prosecutions. The Pinkerton doctrine (Pinkerton v. United States, 1946) holds that each conspirator is liable for foreseeable substantive offenses committed by co-conspirators in furtherance of the conspiracy.

Solicitation

Solicitation is the command, encouragement, or request of another person to commit a crime. Under the MPC § 5.02, solicitation is complete when the actor commands, encourages, or requests another to engage in specific criminal conduct, with the intent that the other person commit the crime. The crime does not require the other person’s agreement or any action in response to the solicitation.

Solicitation merges into conspiracy if the person solicited agrees, and into attempt if the solicitation constitutes a substantial step toward the crime. Many jurisdictions have merged solicitation into conspiracy or abolished it as a separate offense.

Merger and Grading

Inchoate offenses merge into the completed crime. A defendant may not be convicted of both attempt and the completed offense, or both solicitation and the completed offense. Conspiracy does not merge with the completed offense under federal law and in most states, but the MPC provides for merger of conspiracy with the completed offense in most circumstances.

Inchoate offenses are typically graded at a lower level than the completed crime. The MPC grades attempt, solicitation, and conspiracy at the same level as the completed crime for most serious offenses, but at lower levels for less serious offenses. Federal law typically grades inchoate offenses at a lower level than completed crimes.

Conclusion

Inchoate offenses enable the criminal justice system to address culpable conduct that falls short of completed criminal acts. The requirements of specific intent and substantial step for attempt, the agreement requirement for conspiracy, and the command requirement for solicitation define the boundaries of these offenses. The doctrines of impossibility, merger, and grading reflect the law’s attempt to calibrate punishment to culpability when the intended harm does not materialize.