19.3 Inchoate Crimes: Solicitation, Conspiracy & Attempt

19.3 Inchoate Crimes: Solicitation, Conspiracy & Attempt

Inchoate crimes punish conduct that is directed toward a crime but may never be completed. Every inchoate offense requires intent that the target crime be committed, even when the target crime itself requires only recklessness. On the MBE, watch for merger, withdrawal, and impossibility.

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Inchoate offenses are anticipatory or incomplete crimes that attach criminal culpability to conduct preceding the completion of a substantive offense. The central policy rationale is early law enforcement intervention to neutralize danger before ultimate harm occurs. On the MBE, every inchoate offense requires specific intent, regardless of the mental state required for the completed crime.

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Inchoate Crimes Overview & Merger Matrix

                      ┌──────────────────────────────────────────────┐
                      │          INCHOATE OFFENSES & MERGER          │
                      └──────────────────────┬───────────────────────┘
                                             │
             ┌───────────────────────┼───────────────────────┐
             ▼                       ▼                       ▼
   ┌───────────────────┐   ┌───────────────────┐   ┌───────────────────┐
   │   SOLICITATION    │   │    CONSPIRACY     │   │      ATTEMPT      │
   ├───────────────────┤   ├───────────────────┤   ├───────────────────┤
   │ Requesting another│   │ Agreement (+ overt│   │ Specific intent + │
   │ to commit a crime │   │ act in maj./MPC)  │   │ act beyond prep.  │
   ├───────────────────┤   ├───────────────────┤   ├───────────────────┤
   │ Mens Rea:         │   │ Mens Rea:         │   │ Mens Rea:         │
   │ Specific intent   │   │ Specific intent   │   │ Specific intent   │
   │ that crime occur  │   │ to agree & commit │   │ to complete crime │
   ├───────────────────┤   ├───────────────────┤   ├───────────────────┤
   │ Agreement?        │   │ Target Committed? │   │ Target Completed? │
   │ ──► MERGES into   │   │ ──► DOES NOT      │   │ ──► MERGES into   │
   │     Conspiracy    │   │     MERGE         │   │     completed     │
   │ Target Committed? │   │ (Convicted of     │   │     substantive   │
   │ ──► MERGES into   │   │  both conspiracy  │   │     offense       │
   │     Target Crime  │   │  and crime)       │   │                   │
   └───────────────────┘   └───────────────────┘   └───────────────────┘

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Solicitation

Solicitation consists of inciting, asking, commanding, urging, or requesting another person to commit a crime, with the specific intent that the person solicited commit that crime.

Key Doctrinal Rules

• Instant Completion: The crime of solicitation is complete the moment the communication is made. It does not matter whether the person solicited agrees, refuses, or immediately reports the solicitor to the police.
• Merger: Solicitation merges into conspiracy if the solicited party agrees to commit the crime. Furthermore, solicitation merges into the completed target crime if the solicited party actually commits it. A defendant cannot be convicted of both solicitation and the completed crime.
• Common Law Renunciation: At common law, renunciation or withdrawal is no defense once the solicitation is uttered. The Model Penal Code allows a narrow affirmative defense if the defendant completely and voluntarily renounces their criminal intent and affirmatively prevents the commission of the target crime.

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Conspiracy

Conspiracy is an unlawful combination that creates a collective criminal danger distinct from individual wrongdoing.

Elements of Conspiracy

A common law conspiracy requires:

1. An agreement between two or more persons (express or tacit, proved by circumstantial evidence);
2. An intent to agree; and
3. The specific intent to achieve the unlawful objective of the agreement.

Modern Statutory Requirement: The Overt Act

• Pure Common Law Rule: The agreement itself constitutes the completed crime; no overt act is required.
• Majority / MPC Statutory Rule: The state must prove both the agreement and the commission of an overt act in furtherance of the conspiracy by any member of the conspiracy. The MPC does not require an overt act for conspiracies to commit felonies of the first or second degree (MPC § 5.03(5)), and some federal conspiracy statutes, such as the drug conspiracy statute, require none (United States v. Shabani, 1994).
• Threshold for Overt Act: Unlike the substantial step required for attempt, the overt act for conspiracy has a very low threshold: any slight act, even an act of mere preparation (e.g., purchasing a flashlight, driving to inspect a building, or attending a planning meeting), satisfies the requirement. The overt act of one conspirator is attributed to all co-conspirators.

Bilateral vs. Unilateral Approaches

• Common Law (Bilateral Approach): Conspiracy requires at least two genuine guilty minds. If a defendant agrees with an undercover police officer or a feigning informant who lacks actual criminal intent, no conspiracy exists at common law because there is no meeting of culpable minds.
• Model Penal Code (Unilateral Approach): Focuses solely on the subjective culpability of the individual defendant. A person is guilty of conspiracy if they believe they are entering into an agreement to commit a crime, even if the other party is an undercover agent feigning agreement.
• Wharton's Rule: Where an offense inherently requires two participants by its statutory definition (e.g., adultery, bigamy, dueling, bribery), the parties cannot be charged with conspiracy to commit that offense unless more parties participate than are logically necessary to commit the substantive crime.

Co-Conspirator Liability: The Pinkerton Doctrine

Under the landmark doctrine of Pinkerton v. United States, each member of a conspiracy is criminally liable for all substantive crimes committed by other co-conspirators, provided the crimes:

1. Were committed in furtherance of the conspiracy's unlawful objective; and
2. Were a foreseeable, natural consequence of the conspiracy.

Withdrawal from Conspiracy

• Liability for the Conspiracy Itself: At common law, withdrawal can never erase liability for the completed conspiracy itself, because the crime was complete upon agreement (or overt act).
• Cutting Off Future Liability: A conspirator can cut off liability for future substantive crimes committed by co-conspirators if the conspirator performs an affirmative act of withdrawal:
  • The conspirator must communicate their withdrawal to all other co-conspirators;
  • The communication must be timely, giving co-conspirators an opportunity to abandon the plan; and
  • Under the MPC rule, the defendant can defeat the conspiracy charge itself only by thwarting the conspiracy's success under circumstances demonstrating a voluntary and complete renunciation.

The Non-Merger Doctrine

Unlike solicitation and attempt, conspiracy does NOT merge into the completed target crime. A defendant can be convicted and sentenced for both conspiracy to commit a felony and the completed felony itself.

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Attempt

An attempt requires the specific intent to commit a target crime, coupled with an overt act in furtherance of that intent that goes beyond mere preparation.

1. Mens Rea: Strict Specific Intent Requirement

A defendant must possess the specific intent to commit the specific target offense. This rule applies even if the completed crime requires only general intent, malice, or recklessness.

• Example: There is no crime of attempted involuntary manslaughter or attempted reckless battery, because one cannot intend an unintentional or reckless result.
• Example: Attempted murder requires the specific intent to kill. Malice aforethought based on intent to inflict great bodily harm or depraved heart recklessness will support a completed murder conviction if death occurs, but cannot support a conviction for attempted murder if the victim survives.

2. Actus Reus: Beyond Mere Preparation

The defendant must engage in an overt act that crosses the threshold from preparation to perpetration:

• Common Law 'Dangerously Close' Proximity Test: The defendant must come within dangerous physical proximity to the successful completion of the crime, with the present ability to accomplish it.
• Model Penal Code 'Substantial Step' Test: The defendant must commit an overt act constituting a substantial step in the course of conduct planned to culminate in the commission of the crime, which is strongly corroborative of the defendant's criminal purpose (e.g., lying in wait, reconnoitering the scene, possessing materials specially designed for the crime near the location).

3. Merger Doctrine

Attempt merges into the completed substantive offense. If the defendant succeeds in committing the target crime, they can be convicted of the completed crime, but cannot be convicted of both attempt and the completed crime.

4. Impossibility Defenses

5. Abandonment / Renunciation

• Common Law: Once the defendant passes beyond preparation and commits an attempt, abandonment is no defense, even if voluntary.
• Model Penal Code: Voluntary and complete abandonment is an affirmative defense if motivated by a genuine change of heart, rather than fear of imminent apprehension or postponement to a better opportunity.

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Inchoate Crimes: Elements, Merger Rules, and Defenses

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Applying Inchoate Crime Rules

Conspiracy: Proof, Parties, and Scope

• Proving an agreement: An agreement may be inferred from coordinated conduct, but mere association with conspirators or knowledge of a conspiracy is not enough.
• Suppliers: Selling ordinary goods to someone known to intend a crime does not by itself make the seller a conspirator (United States v. Falcone, 1940). A seller's intent may be inferred when the goods are restricted or dangerous, or the seller has a stake in the venture—for example, repeatedly selling unusually large quantities of controlled drugs to one physician (Direct Sales Co. v. United States, 1943).
• Legislative exemption: A person whom a statute is designed to protect, or whose participation the legislature chose not to punish, cannot be convicted of conspiracy to commit that crime. In Gebardi v. United States (1932), a woman who agreed to be transported across state lines for immoral purposes could not be convicted of conspiring to violate the Mann Act, and the man could not be convicted of conspiring with her alone.
• Chains and wheels: Participants in a chain conspiracy (such as manufacturers, wholesalers, and retailers of illegal drugs) are usually part of one conspiracy because each depends on the others. In a wheel conspiracy, the "spokes" who each deal with a central figure form a single conspiracy only if they know of and share a common objective with one another (Kotteakos v. United States, 1946).
• One agreement, many crimes: A single agreement to commit several crimes is one conspiracy, not several (Braverman v. United States, 1942).
• Acquittal of co-conspirators: Under the traditional bilateral rule, if all other alleged conspirators are acquitted in the same trial, the remaining defendant cannot be convicted. Under the unilateral approach, the others' acquittal does not matter.
• Impossibility and police intervention: A conspiracy does not automatically end when the police defeat its objective—for example, by seizing drugs before delivery—so people who join afterward can still be convicted (United States v. Jimenez Recio, 2003).
• Duration: A conspiracy ends when its objectives are achieved or abandoned. Acts of concealment after the objective is achieved are not part of the conspiracy unless concealment was part of the original agreement. Statements by co-conspirators during and in furtherance of the conspiracy are admissible against all members (Federal Rule of Evidence 801(d)(2)(E)).

Attempt: Substantial Steps and Impossibility

• MPC examples of substantial steps (§ 5.01(2)): lying in wait for or following the intended victim; enticing the victim to the planned place; reconnoitering the place; unlawfully entering a building where the crime is to be committed; possessing materials specially designed for the crime or with no lawful purpose; possessing or assembling materials at or near the place of the crime; and soliciting an innocent agent to engage in conduct constituting an element of the crime.
• Hybrid impossibility: Some older decisions acquitted a defendant who received goods he believed were stolen but that police had already recovered, reasoning that the goods were no longer "stolen." Modern courts and the MPC treat such cases as factual impossibility and allow attempt convictions, because the defendant would be guilty if the facts were as he believed.
• Crimes that cannot be attempted: There is no attempted involuntary manslaughter or attempted felony murder, because each involves an unintended death.
• Grading: Attempt is usually punished less severely than the completed crime; the MPC grades it the same as the target offense except for the most serious felonies.

Solicitation Details

• Uncommunicated solicitations: Under the MPC, a solicitation is complete even if the message never reaches the intended recipient (§ 5.02(2)).
• Liability for the completed crime: If the person solicited commits the crime, the solicitor is liable for it as an accomplice (Section 19.4).