Inchoate Crimes: Attempt, Conspiracy, and Solicitation

Attempt is a specific-intent crime regardless of the mens rea of the target offense. This produces a famous trap: there is no such thing as attempted unintentional crime — one cannot 'attempt' depraved-heart murder, felony murder, or involuntary manslaughter, because attempt requires the purpose to bring about the prohibited result. Attempted murder thus requires the specific intent to kill, even though completed murder can rest on a lesser malice state. Beyond intent, attempt requires conduct moving past mere preparation.

The common-law and majority test is 'dangerous proximity' to success — how close the defendant came and how much remained to be done. The Model Penal Code uses a more inclusive test: a 'substantial step' in a course of conduct that is strongly corroborative of criminal purpose. Under the MPC test, lying in wait, reconnoitering the scene, or possessing specialized materials can qualify, so the MPC catches defendants earlier. Attempt merges into the completed offense — a defendant cannot be convicted of both attempted murder and murder of the same victim.

Conspiracy is an agreement between two or more persons to commit an unlawful act, entered with the intent to agree and the intent to achieve the criminal objective. At common law, no overt act was required — the agreement was the crime — but most modern statutes and federal law require an overt act in furtherance (even a trivial, lawful one). The bilateral/unilateral split is crucial. The common-law bilateral approach requires at least two genuinely guilty minds; if one 'conspirator' is an undercover officer only feigning agreement, there is no conspiracy and the real defendant goes free on that count.

The MPC's unilateral approach asks only whether this defendant agreed, permitting conviction even when the only other party is a government agent. California follows the bilateral common-law rule and requires an overt act. The defining consequence of conspiracy is Pinkerton liability: each conspirator is liable for every substantive crime committed by any co-conspirator that is both in furtherance of the conspiracy and a reasonably foreseeable result of it — a reach broader than accomplice liability. Conspiracy does NOT merge with the completed target crime; a defendant can be convicted of both conspiracy to rob and the robbery.

Solicitation is enticing, encouraging, commanding, or requesting another person to commit a crime, with the intent that the person commit it. The crime is complete the instant the solicitation is made with that intent — it does not matter that the solicited party refuses. Solicitation merges into the target crime if it is committed, and into attempt or conspiracy if the solicited party agrees or takes sufficient steps. Impossibility is a recurring trap.

Factual impossibility — the crime could not be completed because of a fact unknown to the defendant (picking an empty pocket, shooting an already-dead person, buying fake drugs believed to be real) — is NOT a defense to attempt, because the defendant had the requisite intent and did all he could. Legal impossibility — the defendant completed exactly what he set out to do, but that act is not a crime (e.g., receiving goods believed stolen that were not in fact stolen) — IS a defense. Abandonment is no defense at common law: once the attempt is complete, a change of heart does not erase it.

The MPC recognizes a narrow renunciation defense to attempt where the abandonment is fully voluntary (not because of increased risk of capture) and complete.

Several structural rules separate clean answers from wrong ones. Merger: attempt and solicitation merge into the completed target offense, so a defendant cannot be convicted of both attempted robbery and the completed robbery, or of both soliciting and committing the crime. Conspiracy is the great exception — it does NOT merge, because the agreement is treated as a distinct social harm, so a defendant may be convicted and punished for both conspiracy to commit robbery and the robbery itself.

Wharton's Rule limits conspiracy where the target crime by its very nature requires the participation of two persons (dueling, adultery, bigamy, the sale-and-purchase of contraband between the only two necessary parties): those two cannot be charged with conspiring to commit that crime, though a third participant outside the necessary pair can revive a chargeable conspiracy. Relatedly, a person cannot conspire with someone who is legally incapable of committing the crime or who is a member of the class the statute protects.

The scope of a single conspiracy versus multiple conspiracies is tested through the 'chain' and 'hub-and-spoke' models: a vertical distribution chain (manufacturer to wholesaler to retailer) is usually one conspiracy because each link depends on the others, while a hub dealing separately with unconnected spokes is multiple conspiracies unless the spokes know of and depend on one another.

Withdrawal from a conspiracy is narrow: a conspirator who affirmatively notifies all co-conspirators or the authorities can cut off liability for later substantive crimes committed in furtherance (limiting future Pinkerton liability), but he remains liable for the conspiracy itself, which was complete upon agreement. To escape the conspiracy charge entirely, some jurisdictions require a full renunciation that thwarts the conspiracy's success. California specifics are heavily tested.

California follows the bilateral approach and, by statute (Penal Code section 184), requires an overt act by at least one conspirator in furtherance of the agreement — the agreement alone is not enough, unlike the pure common law. California adheres to the Pinkerton doctrine, making each conspirator liable for foreseeable crimes committed in furtherance.

For attempt, California Penal Code section 21a defines the crime as a specific intent to commit the offense plus a direct but ineffectual act toward its commission, and California courts use a 'slight-acts' formulation once intent is clearly shown — closer to the substantial-step approach than to strict dangerous proximity. Solicitation in California is limited by statute (Penal Code section 653f) to an enumerated list of serious felonies and generally requires corroboration of the solicitation, a recurring trap where the facts involve a minor or non-listed offense.

Punishment principles also differ: under the common law, solicitation and attempt were misdemeanors while the target could be a felony, but modern grading usually pegs the inchoate offense to the seriousness of the target. Finally, remember that one cannot attempt a crime defined only by reckless or negligent results, cannot be an accomplice to a strict-liability crime he could not commit, and cannot conspire alone — these 'logical impossibility' traps reward a candidate who keeps the mental-state requirements of inchoate liability firmly in view.

The Three Inchoate Crimes Compared