End-of-Chapter Material
Summary
All inchoate crimes are incomplete and anticipatory. By their very definition, inchoate crimes might never be completed. The rationale for punishing a defendant for an inchoate crime is prevention and deterrence. The three inchoate crimes are attempt, solicitation, and conspiracy. All inchoate crimes are specific intent or purpose crimes – the defendant must intend to accomplish the underlying criminal objective.
Attempt punishes an unsuccessful effort to commit a crime, solicitation punishes an effort to persuade another individual to commit a crime, and conspiracy punishes an agreement to commit a crime when combined with an overt act in furtherance of the agreement.
The actus reus of attempt requires more than criminal thoughts or mere preparation. Modern US jurisdictions have adopted one of four tests: (1) the dangerous proximity test, (2) the probable desistance test, (3) the res ipsa loquitur test, or (4) the substantial step test (as developed by the Model Penal Code). Alaska has adopted the substantial step test. The substantial step test requires the defendant to engage in such conduct that demonstrates a clear and definitive intent to complete the crime. Examples of a substantial step include lying in wait, casing the potential crime scene, or gathering the instrumentalities needed for the crime.
Alaska has specifically criminalized certain preparatory behaviors, including the possession of burglar’s tools. Preparatory crimes may be combined with attempt under appropriate circumstances.
There are two types of impossibility – legal and factual. Neither is a defense to attempt in Alaska. Legal impossibility occurs if the defendant mistakenly believes that the act attempted is illegal, when in fact, it is legal. Factual impossibility occurs if the crime cannot be completed because the facts are not as the defendant believed them to be.
Solicitation is asking another person to commit a crime. The voluntary act requires the person to request through words or conduct the other person commit a crime. Solicitation is sometimes referred to as a “double inchoate” crime or “attempted conspiracy”.
Conspiracy is an agreement between two or more individuals to commit a serious felony offense. A serious felony offense is a small, limited number of serious crimes. Conspiracy requires the conspirators to agree to commit the target criminal offense and commit an overt act in furtherance of the conspiracy. Unlike attempt, the overt act in furtherance of the conspiracy may be planning or preparatory activity. The overt act must simply be enough to demonstrate that conspirator intends to complete the target crime.
Conspiracies need not be formal, sophisticated arrangements. Informal agreements may suffice. There are two types of large-scale conspiracies. Chain conspiracies are linear in progression. Wheel conspiracies consist of a ringleader in the hub and other members of the conspiracy as the spokes. A conspirator need not know the identities of their co-conspirators. Conspiracy, unlike attempt and solicitation, does not merge with the completed offense.
Voluntary renunciation is a defense to all inchoate crimes. Renunciation means giving up, refusing, or abandoning one’s criminal objective. The renunciation must be voluntary and complete. A renunciation is not voluntary and complete if it is motivated by the belief of detection or apprehension or a decision to postpone the criminal conduct until a different time.
Most inchoate crimes are graded lower than the completed crime. The exception tends to be murder – attempted murder, solicitation to commit murder, and conspiracy to commit murder are not graded lower than the completed crime. Nonetheless, most sentencing courts recognize that an incomplete murder is less serious than a completed murder.
Key Takeaways
- An inchoate crime is a crime that might not be completed.
- All inchoate crimes are specific intent crimes.
- The four tests jurisdictions use to ascertain the criminal act element required for attempt are proximity, res ipsa loquitur, probable desistance, and substantial step.
- The proximity test determines how close the defendant is to committing the crime by analyzing how much is left to accomplish after preparation for the offense.
- The res ipsa loquitur test, also called the unequivocally test, examines the defendant’s actions at a moment in time to determine whether the defendant has no other purpose than committing the crime at issue.
- The probable desistance test analyzes whether the defendant has progressed so far that it is probable he or she will not desist without interruption from law enforcement or other intervening circumstances.
- The substantial step test is the Alaska test and ascertains whether the defendant has completed sufficient steps toward the commission of the crime that are corroborative of the defendant’s criminal intent.
- Preparatory crimes criminalize preparing to commit a crime, which would be a stage that is too premature to constitute the criminal act element required for attempt.
- Impossibility is not a defense to attempt. Neither legal impossibility nor factual impossibility is a defense.
- Factual impossibility means the defendant cannot complete the crime because the facts are not as the defendant believes them to be. Legal impossibility means the defendant believes he or she is attempting to commit a crime, but the defendant’s actions are actually legal.
- Voluntary renunciation is similar to voluntary abandonment and occurs when the defendant voluntarily and completely withdraws from the commission of the offense before it is consummated.
- Attempt merges into the completed offense, which means that a defendant cannot be punished with attempt and the completed crime.
- Alaska grades attempt lower than the completed offense, with the exception of attempted murder.
- Solicitation is an inchoate crime because the crime that is solicited may not be completed.
- The voluntary act required for solicitation is words or conduct that encourages another to commit a crime.
- Voluntary renunciation is an affirmative defense to solicitation if the defendant voluntarily and completely renounces his or her criminal purpose and thwarts the commission of the solicited crime.
- Solicitation is graded lower than the completed offense with the exception of solicitation to commit murder.
- Conspiracy is an agreement to commit a serious felony offense. Conspiracy is the most serious inchoate offense.
- The voluntary act required for conspiracy is an agreement to commit the serious felony offense
- One of the conspirators must commit an overt act in furtherance of the conspiracy. The overt act can be preparatory activity
- Failure to prosecute one coconspirator does not prohibit the prosecution of other coconspirators in some jurisdictions.
- A coconspirator does not need to know every other coconspirator; as long as a coconspirator is aware that there are other members, he or she can be criminally responsible for conspiracy.
- A wheel conspiracy connects all members to one central member. A chain conspiracy interconnects the members in a linear fashion.
- Renunciation is an affirmative defense to conspiracy if the defendant voluntarily and completely renounces the conspiracy and thwarts the crime that is its object.
- Conspiracy does not merge like attempt; a defendant may be convicted of conspiracy and the crime conspired.
- Conspiracy is generally graded lower than the conspired offense. Conspiracy to commit murder is the exception.
Answers to Exercises
From Solicitation
- Nancy has committed solicitation to commit counterfeiting, which in Alaska is a first-degree forgery. AS 14.46.500(a)(1). It is of no import that Jennifer refuses Nancy’s request because the criminal act element of solicitation is requesting another to commit a crime, not a mutual understanding or agreement (like conspiracy).
- John has likely committed solicitation to commit robbery. John had the intent to cause another to engage in conduct constituting a crime and he solicited another person, Bob, to engage in that conduct.
John has also committed the completed crime of robbery since he was an accomplice to the crime as a result of the solicitation. Note that the crime of solicitation merges with the completed crime if successful. Thus, John will only stand convicted of the completed crime of robbery under an accomplice theory.
It is not a defense that a person whom the defendant solicits could not be guilty of the crime that is the object of the solicitation. As we will discuss in a subsequent chapter, while Bob might be charged with a crime, Bob likely remains incompetent, and thus, could not be prosecuted for the robbery. But Bob’s incompetency is not a defense against John’s criminal liability.
Finally, John cannot claim the affirmative defense of renunciation since that defense requires that the solicited crime be prevented, something that John did not do, despite his best efforts.
