Inchoate Offenses: Attempts, Solicitation, and Conspiracies

1. CHAPTER 4 Extending Criminal Liability: Inchoate Offenses and Parties to Crime

2. Intent to commit a crime is not itself criminal. There is no law against a man’s intending to commit a murder the day after tomorrow. The law only deals with conduct.-Oliver Wendell Holmes (The Common Law, 1881)

3. Inchoate Crimes • Defined as imperfect, partial, or unfinished crimes • Also referred to as anticipatory offenses • A crime that consists of actions that are steps toward another offense • Inchoate crimes traditionally include • Attempts • Solicitation • Conspiracies

4. Conceptual Difficulty with Inchoate Crimes • When should the police arrest? • Too early… only on suspicious behavior that may in fact be innocent • Too late… victims may be harmed, offender may escape • Example: Burglary suspect approaching a house at night… When should the officer arrest?

5. Criminal Attempt • Requires a SUBSTANTIAL STEP: • Significant activity undertaken in furtherance of the criminal goal • Conduct that is strongly corroborative of the actor’s criminal purpose • Attempt is a specific intent crime • The two elements of ATTEMPT: • Specific intent to commit a criminal offense • A substantial step undertaken toward the commission of the intended offense

6. The Act Requirement for Criminal Attempt • An ACT of some sort is necessary • Generally mere preparation (though an act) is not sufficient – mere preparation… • is an act or omission planned to culminate in the commission of a crime • fails to meet the requirements of a substantial step • is remote from the actual commission of the crime • The ACT requirement is more than mere preparation but less than the completed act

7. People v. Rizzo A Case of Criminal Attempt • Four men drove around looking to rob Rao of a company payroll. They never found Rao but were arrested when police found their actions suspicious. • The court asked: • Did the acts above described come dangerously near to the taking of Rao’s property? • Did the acts come so near to the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference of the police?

8. Distinguishing between Preparation and a Substantial Step • The last act test – asks whether the conduct completed is dangerously close to completing the crime itself • The notion that the more serious the threatened harm, the more justified the court would be in examining acts further back in the series of acts that would lead to crime completion • The idea that the clearer the intent to commit the offense is, the less proximate the acts need to be to the completion of the crime to constitute the crime of attempt

9. Proximity Approach Relative to Criminal Attempt • Physical proximity test requires that the accused has it within his power to complete the crime almost immediately • Acts immediately connected with the commission of the offense are considered as attempts • Remote acts are not considered attempts • Proximity is based upon the last act test

10. The Last Act Test Relative to Criminal Attempt • Used in the crime of attempt • Asks whether the accused had taken the last step or act toward commission of the offense • The actor had performed all that he intended to do and was able to do in an attempt to commit the crime • For some reason, the crime was not completed

11. Alternatives to the Proximity Approach Relative to Criminal Attempt • The indispensable element test • Does the accused have control of an indispensable feature to complete the crime? • The unequivocally test • Has the accused demonstrated acts that unequivocally manifest his criminal intent? • The Probable desistance test • Will the accused voluntarily stop?

12. The Model Penal Code Approach Relative to Criminal Attempt • Uses both • The substantial step test • Proximity test • Examples • Lying in wait or searching for the victim • Enticing the contemplated victim • Reconnoitering the place contemplated • Possession of materials to be employed in the commission of the crime

13. Defenses to Criminal Attempt • Abandonment or renunciation • The defendant voluntarily decided to renounce continued attempts to commit the crime • Postponement is not abandonment • Involuntary abandonment is not a defense • Impossibility • Factual • Legal

14. Punishment for Attempted Crimes • Many states punish the offender one step below the completed crime • The Model Penal Code provides the same punishment as the completed act • The same mens rea is required for both attempt and the completed act • Thus the same punishment is justified • Punishment should be determined by the anti-social disposition of the offender

15. Criminal Conspiracy • An agreement between two or more persons • To commit or effect the commission of an unlawful act or • To use unlawful means to accomplish a lawful act • Most states and the federal government classify conspiracy as a felony • Overt Acts (legal behavior)

16. Conspiracy: Elements of the Crime • An agreement between two or more person • To carry out an act that is unlawful or one that is lawful but is to be accomplished by unlawful means • A culpable intent on the part of the defendants

17. Conspiracy: Requirements • Plurality • The logical and legal requirement that a conspiracy involve two or more parties • Wharton’s Rule • There can be no conspiracy when no more than the number of person required to commit the offense participate in it. • Required Intent • There must be some intent on the part of the conspirators to reach an agreement • There must be intent to achieve the objective

18. Conspiracy: Parties Involved • The law does not require that each party form an agreement with all of the other parties involved. Examples include: • Organized crime • Drug dealing; illicit gambling • Organized prostitution • Wheel Conspiracies (ring leader directs) • Single conspiracy • Series of conspiracies

19. Duration of Conspiracy • The longer a conspiracy continues, the greater the chances of successful prosecution • A conspiracy continues until • The crime is completed • The criminal plan is abandoned by all parties • Withdrawal may be an issue

20. Criminal Solicitation • The encouraging, requesting, or commanding of another person to commit a crime • All states have codified solicitation • Criminal solicitation, unlike conspiracy, requires no overt act • It does require mens rea

21. Parties to Crime • Who is criminally liable? • All persons who take part in the commission of a crime • Those who aid and abet • Common Law Categories • Principal in the first degree • Principal in the second degree • Accessory before the fact • Accessory after the fact

22. Parties to Crime: Legal Points • Relationship of complicity • The trend is to eliminate distinctions between principals and accessories before the fact • Accomplice liability • The degree of criminal blameworthiness that accrues to one who aids, abets, encourages, or assists another person to commit a crime • Accessory • One who knowingly gives assistance

23. The Criminal Liability of Corporations • Over time, criminal liability has been attributed to corporations • By the mid-twentieth century, legal understanding and practice categorizes corporations as persons for purposes of the law, rendering them liable for some crimes • Especially true for strict liability crimes • The offense must have been conduct that was performed by an agent acting on the corporation’s behalf

24. Vicarious Liability • The criminal liability of one party for the criminal acts of another party • This concept is related to strict liability • Generally associated with regulatory crimes (employer liable for criminal acts of employees) • In most cases, vicarious liability is punishable only by a fine

25. Discussion Questions • Why is it necessary to require a “substantial step” before mere plans become a criminal attempt? • What is the difference between conspiracy and criminal solicitation? • When is a corporation liable for the acts of its officers? • If a bar owner instructs his employees not to sell to minors, should the owner be held liable if employees do serve minors?

26. Discussion • Jerry needed money to pay his college tuition. He decides to rob a bank. He asked his classmate Ken to help. They agree to split the take. Tuesday, Ken buys a gun and ski mask. Ken stops at a local bar and brags to Paul that he and Jerry are going to rob a bank. Ken asked Paul to join in. Paul (an under-cover police officer) agrees. The three decide to rob Thursday afternoon. Wednesday, they get together for dinner to go over final plans. During dinner, all three are arrested.

27. Do you have any questions?

28. Next Week • Chapter 5 • Quiz on Chapters 4 & 5. • Following Week • Chapters 6 & 7.