Inchoate Crimes: Conspiracy, Attempt, Solicitation, and More

Inchoate Crimes: An Overview

Definition

Inchoate crimes, also known as incomplete crimes, are actions that are not crimes in themselves but occur in conjunction with other crimes. Examples include attempted murder and conspiracy to commit robbery.

Types of Inchoate Crimes

Conspiracy

Conspiracy is the oldest inchoate crime. It involves an agreement between two or more people to commit an unlawful act. The purpose of conspiracy laws is to prevent and punish criminal partnerships from attempting substantive offenses.

Elements of Conspiracy:

1. Agreement between two or more people
2. Intent to commit a crime
3. Overt act by any co-conspirator in furtherance of the conspiracy

The overt act need not be criminal but only needs to carry the project forward.

Conspiracy is known as the "Prosecutor's Darling" because it can be easy to prosecute. The prosecutor can:

• Forum shop: Trial can be held in any jurisdiction where either the agreement or any overt act occurred.
• Conduct joint trials and use hearsay evidence: The prosecutor can use co-conspirators' admissions against the defendant.

A defendant can be convicted of conspiracy even if the other parties to the agreement cannot be prosecuted.

Wharton Rule: Conspiracy cannot be charged if the number of people charged are only those necessary to commit the crime. For example, bigamy.

Attempt

Attempt is the most frequently charged inchoate crime. It occurs when a person intends to commit a specific crime and acts to carry out that intent.

Mere preparation is not enough. The act need not be the final one but must carry the project forward within "dangerous proximity" to the end. New York State follows the "dangerous proximity" test, also known as the Rizzo test.

In New York State, "impossibility" is not a defense to attempt. For example, attempted murder is still a crime even if the victim is already dead.

Attempt reduces the degree of the crime.

Solicitation

Solicitation involves inciting, requesting, or commanding another person to commit a crime. No agreement or overt act is required by the person solicited.

Not every exhortation is solicitation. For example, yelling "Kill the ref!" at a soccer game is not solicitation.

No defense that the person solicited has a defense.

The degree of solicitation is elevated depending on the crime solicited and the age of the person whom the defendant solicits.

Defense of Abandonment/Withdrawal

In New York State, this is known as renunciation. The defendant must take steps to prevent the crime from happening; it is not good enough just to stop out of fear of arrest.

RICO (Racketeer Influenced & Corrupt Organizations Law)

RICO is a statute used mainly by the federal government to break up criminal "enterprises" based on conspiracy principles. Examples include Mafia and gang cases.