"Be not ashamed of mistakes, and thus make them crimes" (Confucius)
Anticipatory, incipient, incomplete, and preliminary crimes are all other words for inchoate crimes, acts that imply an inclination to commit a crime even though the crime is never completed. The word "inchoate" means underdeveloped or unripened. Because of the social need to prevent crimes before they occur, the common law long ago established three (3) separate and distinct categories of inchoate crimes -- the crimes of attempt, conspiracy, and solicitation. Over the years, there has been little addition to this category of crime with the possible exception of possession (as in possession of burglar tools, bomb materials, gun arsenal, etc.) and another, seldom-heard offense based on the notion of preparation, which has normally not been associated with inchoate crimes.
Traditionally, inchoate crimes have always been considered misdemeanors, but over the years they have been merged into felonies as society has put more power in the hands of law enforcement and prosecutors to deal with recalcitrant problems such as organized crime, white collar crime, and drug crime. Traditional rules that exist are: (1) a person should not be charged with both the inchoate and choate offense, according to the so-called Doctrine of Merger, with the exception of conspiracy which can be a separate charge; (2) lesser penalties should ideally be imposed for inchoate crimes, but in many cases, the penalty should be exactly the same as for the completed offense; (3) inchoate crimes should have specific intent, spelling out clearly what the mens rea elements are; and (4) some overt action or substantial step should be required in the direction of completing the crime. This set of rules is sometimes referred to as the doctrine of inchoate crimes.
It's best to discuss the three inchoate crimes in alphabetical order, and also for another reason -- attempt is considered to stand closest to a completed crime, conspiracy is considered to be further removed, and solicitation is considered the furthest removed.
Criminal attempt, in many ways, is all about failure (not being a very good criminal), for example, shooting at somebody and missing, holding up a cash register to only find $5, stealing a CD by taking it out of its case, stuffing it down your pants, and having it break in half before you get out of the store (the law includes strokes of luck in its conception of failure). The law of attempt is also about nipping violence in the bud, so under certain circumstances, even certain words ("threats", "challenges") might qualify as attempts. There's no such thing as a crime called "attempt." Most states allow the prosecutor to pick what the crime is that's being attempted; that is, most states do not try to define attempted murder, attempted robbery, attempted rape, and so forth. Most states typically have a general attempt statute that specifies a punishment (usually the same as for the completed offense) and allows the word "attempted" to be placed before the target crime.
The elements of attempt include:
(1) specific intent -- this means that "purposely" is the only mens rea that qualifies. All inchoate crimes are specific intent crimes, and all specific intent crimes do not allow such states of mind as reckless, negligent, or strict liability.
(2) an overt act toward commission -- this is intended to weed out the plotters from the perpetrators, but the standards vary widely by jurisdiction. Acts of preparation do not count. Some places use fairly loose language like "some steps" while other places use the more rigorous "all but last act" standard. There are at least four tests used in various places:
physical proximity doctrine -- this focuses upon space and time, establishes the "last act" standard which requires looking at the remaining steps
probable desistance approach -- this considers whether the attempt would naturally lead to commission but for some timely interference not related to bad luck
equivocality approach -- this looks at whether the attempt can have no other purpose than commission of a crime
substantial steps test -- this is a Model Penal Code-recommended approach which looks for corroborating evidence in the form of conduct which tends to concur or verify a criminal purpose
(3) failure to consummate the crime -- the law looks at the reasons why the crime failed, and in some cases, the reason mitigates the punishment or removes the liability, as in:
legal impossibility -- a defense that what was attempted is not a crime (raping a mannequin, for example, because rape requires a human victim) Prosecutors have the burden of proving legal possibility as well as apparent ability
factual impossibility -- a defense that some extraneous factor or outside force made it impossible to complete the crime; most jurisdictions will not accept this on the presumption that "luck" doesn't count (same as no defense)
renunciation -- this is the idea of abandonment, and to be a successful defense, the actor must have given up for moral reasons, not just because of the risk of apprehension
Different courts use different tests, but with the law of attempt, all courts distinguish between mere preparation to commit the crime and an actual attempt to commit it. Only the latter is prohibited. Federal courts generally use the "substantial steps" test borrowed from the Model Penal Code. The substantial steps test is as follows: "if, acting with the kind of culpability otherwise required for commission of the crime, [the offender] ... purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime" (United States v. Hsu, 3d Cir, 1998). In sum, the law looks at attempt as something more than just trying to do something.
The essence of conspiracy is an agreement. It doesn't have to be a written one; a "meeting of the minds" will do (Flax 2005). Usually, it's inferred from the facts or circumstances. What the agreement has to be about doesn't even have to be criminal, only "unlawful." Under some statutes, a conspiracy can involve any act injurious to public health, public morals, free commerce, or any act perverting justice. Because a conspiracy by itself is almost treated as a substantive crime in itself, this is the only inchoate offense that the law permits a person to be charged with in addition to the target crime (that is, a person can be charged with both murder and conspiracy to commit murder, e.g.). This probably won't be reduced by plea bargaining.
A conspiracy is difficult to conceptualize in terms of the legal elements of the crime. Accomplice law includes terms such as "aid," "abet," "assist," "counsel," "induce," or "incite" which may have different meanings depending upon what jurisdiction you're in. Normally, you can't be considered as an accomplice simply for being there -- you must be constructively present. Accomplice law is also where the notion that you can't hold a corporation criminally liable comes from, specifically from the doctrine of respondeat superior which establishes the notion of "vicarious liability" where a master is responsible for the illegal conduct of their servant. The relationship is what creates the liability. It often comes up in business, where a corporation (as an entity, not a person) cannot commit a crime (cannot form criminal intent) but it can be held "criminally liable" if the only punishment sought is a fine or seizure of property. Officers of a corporation can be punished by imprisonment only if the corporation itself has been held "criminally liable" first (a pretrial finding of at least negligence), the officer has been found guilty of malfeasance, misfeasance, or nonfeasance by their corporation, and (unless stated otherwise in statute) the officer causes, requests, commands, or in any way authorizes the illegal act to be committed. On the other hand, corporations are legal separate entitites and can be charged as a co-conspirator if it is apparent that employees acted along with officers. A partnership, by contrast, is not a legal entity and cannot be charged with conspiracy. Under certain conditions, employers and even attorneys can be charged with conspiracy. Landlords who know something illegal is happening on their property can be charged with conspiracy. Husbands and wives may be charged with conspiracy.
Conspiracy is the favorite tool of prosecutors. It has a lot of jury appeal, and there's a lot of presumptions and procedural rules that favor the prosecution. For example, the hearsay rules are relaxed, and out-of-court statements made during the course of the conspiracy by one member are admissible against other members at trial. It's easy to get a conviction for conspiracy because, basically, all the prosecutor has to do is present all the evidence and let the judge tell the jury what test will be used to determine whether an agreement existed. In most jurisdictions, proof of the agreement is sufficient; no further (overt) act is required. In jurisdictions requiring an overt act, the standard is not as high as the law of attempt, and is basically proven by showing at least one of the conspirators had at least the intent to commit a substantive offense. Conspiracy is still a specific intent crime, so "purposively" must be used, not just knowledge, although there's a whole string of inconsistent case law that indicates erosion in this area.
Conspiracies are often formed when the crime requires large numbers to commit, various steps in the commission of the crime can be easily compartmentalized (to reduce risk), and profits can be maximized so that one part of the conspiracy enjoys the fruits of the crime. Conspiracy laws enable law enforcement to dismantle the whole organization, operation, or arrangement. Even those who provide lawful services in furtherance of the conspiracy can be charged; i.e., persons who cannot be charged with aiding or abetting or as an accessory can still be charged with conspiracy. In addition, conspiracy laws may be used by authorities to undertake proactive law enforcement, such as surveillance and undercover operations. Assets can be seized for the crime of conspiracy.
According to Title 18, Section 371 of the U.S. Code, the elements of conspiracy include:
two or more persons
agreement to commit offenses against the United States, or
agreement to defraud the United States, and
an overt act in furtherance thereof
Further discussion of the elements of conspiracy include:
(1) mens rea -- a specific intent to attain a particular criminal objective on the part of at least one person in the partnership. Purpose can be inferred from circumstances surrounding the combination, such as failure to keep records, clandestine meetings, quantities involved, continuity of the relationship, etc. There are different rules used by different jurisdictions on the kinds of relationships that qualify:
unilateral rule -- the idea that among a group of conspirators, there is at least one individual with criminal intent
bilateral rule -- the idea that one cannot conspire alone; at least two guilty persons are required
Wharton's rule -- the idea that because conspiracy charges imply a danger to society, there must be more (>2) partners than the minimum number required to commit the crime (a third party must be involved), so therefore, conspiracy to commit adultery, bigamy, and incest will require 3 people
(2) actus reus -- proof of an agreement is proof of the actus reus for conspiracy. In some statutes, an overt act marks the point where all those part of the conspiracy are considered liable. However, proof of an unwritten understanding will suffice, and intent is the key element of completion if all the parties know there is a plan and know there is an overal purpose to the plan. They do not have to know the details nor all the other parties involved, but there must be some participation in the plan. Just knowing a conspiracy exists without participation does not make one a party to the conspiracy. Likewise, "late joiners" to a conspiracy may not be liable, and in almost all cases, a late joiner does not create a new conspiracy.
Most conspiracies are of two types, and although one can easily find textbooks which claim a "third" type exists, often called a combination type, semi-autonomous leadership type, leaderless type, or what-have-you, the fact is that the legal system has worked well with only the following two types for many years. During or at the end of a trial, the judge is obligated to instruct the jury on the scholarly meaning of these types:
chain conspiracy -- this usually involves the distribution of something, like drugs, where each person in the conspiracy handles the commodity at different points in the process, like with the stages of manufacture, distribution, and sale which form a linear (from left to right) chart when diagrammed.
Group of actors
Group of actors
wheel conspiracy -- this is where a hardcore group of participants ("middlemen") handle most of the transactions in "front" operations, like a hub, that when diagrammed on paper, look like a wheel, protecting those at the top or on other spokes of the wheel.
"Front" Operation A
"Front" Operation C
"Front" Operation B
Defenses and Other Issues: Police officers cannot initiate a conspiracy -- that would automatically be entrapment. Undercover officers are also automatically exempt from conspiracy charges. They can, however, give somebody an opportunity to enter into an existing conspiracy where the police agent is a feigned accomplice. This means that already existing conspiracies can be infiltrated. Other than entrapment, the only other defense available to the defendant is complete and total withdrawal. The standard is high. The defendant has to show their complete and total withdrawal that they tried to notify or tip off authorities, felt guilty about their own involvement, and took active steps to thwart the conspiracy. A statute of limitations kicks in when one of the parties decides to terminate the conspiracy, however, affecting what is called the duration of the conspiracy, and this means that no statements made by such a person after their decision to quit may be used against them. The defenses of impossibility and abandonment are of little use in conspiracy law as they are considered the same as no defense. However, some jurisdictions will permit abandonment, but the standard is high, the defendant has to show their complete and total withdrawal by notifying the authorities about their own involvement and taking steps to thwart the conspiracy. Conspiracy doesn't recognize anything sacrosanct about the husband-wife relationship, and corporations can be widely charged if more than one corporation is involved.
Solicitation is best thought of as a substantive crime in itself, remote from being thought of as an attempt at a substantive crime. Solicitation occurs when the solicitation is made. Another way of saying this is that the crime of solicitation is over with the asking. The crime of solicitation is inherently incomplete (inchoate) because the law doesn't even care if the solicitation was influential or not. The exception is murder. Solicitation of murder (aka contract killing aka murder-for-hire) is a common crime of solicitation, but generally results in a charge of homicide, not just solicitation. It also doesn't matter if it's a crowd or an individual being solicited, and it's even possible to perpetrate solicitation through an intermediary. What does matter is the thing being solicited -- the crime of solicitation should be restricted to certain serious felonies. At common law, these would be crimes that breach the peace or obstruct justice.
Solicitation (specifically the actus reus of it) consists of words; words that create an inducement, defined as advising, commanding, counseling, encouraging, enticing, entreating, importunes, incites, induces, instigates, orders, procures, requests, solicits, or urges another to commit a serious felony with the specific intent that the person solicited commit the crime. This list is sometimes called the list of proper utterances for the crime of solicitation.
The elements of solicitation include:
(1) mens rea -- not intent to commit a crime, but specific intent to persuade someone else to commit a crime; also not joking around or making casual comments ("I wish that person would drop dead") but "purposely" wanting to persuade someone.
(2) actus reus -- words that contain some sort of inducement; words that are on the list of proper utterances for the crime of solicitation; uttering the words is the actus reus, and it doesn't matter if the means of utterance is oral, written, or electronic.
Defenses: Impossibility of any type is the same as no defense. Some jurisdictions allow withdrawal or renunciation.
(1) Is the spread of AIDS attempted murder?
Should criminal liability be imposed on those who knowingly, recklessly, or negligently engage in behavior that might lead to unsafe sex, exposing others to possible transmission of the HIV virus? (Remember that traditionally, "purposely" has been the specific intent of inchoate crimes) Some cases:
(2) Are friends who let friends do drugs conspirators or just bad buds?
Money laundering is a typical conspiracy crime, defined as the process by which cash derived from a criminal enterprise is exchanged, intermingled, or converted with other cash which produces no trace of origin for the original cash. The term goes back to the Al Capone days of Chicago mobsters in the 1920s who used local laundries to cover up their profits from gambling, racketeering, and bootlegging. It is the process of converting funds derived from illegal activities into spendable or consumable form. "Hiding" dirty money is not the same as "laundering" it. Money laundering is regarded as the world's third largest business, following the legitimate financial sector and manufacturing. The United States, not offshore banks or other places, is responsible for about half of the $750 billion that are laundered every year. Some 60-80% of all federal money laundering prosecutions involve drug-related "kingpins" although terrorists, arms dealers, and international criminal organizations also launder money quite regularly.
The basic mechanics of money laundering, according to Richards (1999), involve three steps: (1) placement - getting illegal proceeds into the mainstream financial system; (2) layering - mingling the funds with those of legitimate origin and moving or transferring them around different financial institutions; and (3) integration - reintroducing the funds back into the mainstream economy to be invested or spent legitimately. For example, a drug kingpin would ordinarily see to it that his drug money is all collected and sent to what is called a "counting house." These houses are usually in a remote location near the dealership region and are heavily armed and secure places. From there, the money is broken up into small amounts, usually less than $10,000, and then given to runners called "smurfs" (what investigators call the runners who scurry in and out of banks), who deposit their small amounts simultaneously in nearby banks. After a week or so, the smurfs then order their accounts to be transferred to someone else's account in a larger, big-city bank. The holder of that account then wire-transfers a large sum of money to a foreign bank, where it is converted to a certificate of deposit that is then used as collateral for a loan at another foreign bank. These loan proceeds are then sent to Mr. Big or whomever the kingpin is. It should be noted that this example doesn't exhaust all the possibilities. In addition to "smurfing," organized criminals often mix their money with bank deposits for cash-rich businesses, like casinos, restaurants, and bars. Furthermore, various ethnic groups frequently have their own underground banking system, such as Hawala for Middle Easterners, or fei chi'en for Asians.
ALIS Online: Renunciation of Attempt, Conspiracy, Solicitation
Criminal Law Review Questions: Marquette Univ. School of Law
Haeji Hong's Lecture Notes: Inchoate Crimes
Kent Law School: A Brief History of Conspiracy
Money Laundering Alert
Quid Pro Quo's Criminal Law Outline
What is Money Laundering?
Wikipedia Entry on Inchoate Offense
Cohen, N. & J. Gobert. (1976). Problems in Criminal Law. St. Paul: West.
Flax, M. (2005). Conspiracy Investigations. San Clemente, CA: LawTech Custom Publishing.
Fletcher, G. (1978). Rethinking Criminal Law. Boston: Little, Brown.
Freidrichs, D. (2004). Trusted Criminals, 2e. NY: Thomson Learning.
Posner, R. (2004). Frontiers of Legal Theory. Cambridge, MA: Harvard Univ. Press.
Richards, James. (1999). Transnational Criminal Organizations, Cybercrime, and Money Laundering. Boca Raton: CRC Press.
Samaha, J. (1999). Criminal Law. 6th ed. Belmont, CA: West/Wadsworth.
Simon, D. & F. Hagan. (1999). White Collar Deviance. Boston: Allyn & Bacon.
Last updated: Aug 15, 2010
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