Inchoate Crimes

These type of crimes are commonly referred to as incomplete crimes. The idea behind the law that covers these type of crimes, is not to punish the underlying offense but what was really behind it. For example, if you are in an agreement with another person to go and attack a third person to get his or her belongings, you are likely to be charged not only for the robbery which is the underlying offense but also with the conspiracy to commit robbery because you had an agreement to do so.

There are four main crimes of this nature: attempt, conspiracy, solicitation, and aiding and abetting, or accessory. Florida Statute 777.04 is the general statute that defines each and every one of these crimes.

Attempt

This is the act of trying to commit a crime and failing. Because attempt can involve very serious crimes, like robbery, it is often seen as the most serious of the inchoate crimes. Criminal attempt has three requirements. First, the person must have had the specific intent to commit the actual crime. Second, the person must take actions in furtherance of the crime. Third, the crime must not have been completed. If it was completed, the individual would be charged with the actual crime and not attempt.

Attempt is defined as an inchoate crime where an individual, with the intent to actually commit a crime, undertakes an action in furtherance of that crime, but ultimately fails. Attempt is therefore comprised of three elements: (1) intent to commit a crime; (2) conduct that constitutes a substantial step toward completing the crime and (3) a failure to complete the crime.

Intent

Because an attempt does not result in the actual commission of a crime, prosecuting an individual for attempt requires clear evidence of intent to commit the crime. Individuals cannot be charged with attempt for accidentally committing a crime. Rather, a prosecutor must show that the defendant specifically intended to commit the crime that he attempted, and he simply fell short. Attempt is therefore categorized as a “specific intent” crime. This means that acting negligently or recklessly is not enough to support a charge of attempt.

One caveat to this general rule is the concept of transferred intent. Under transferred intent, an individual who intends to commit a crime against one person, but ends up hurting another person, may be held responsible for one or both crimes. For example, if a man intends to shoot his wife, but when he discharges the gun he accidentally hits his wife’s friend who is standing nearby, the man may be guilty of the murder of the friend (because his intent transfers to her) and also be guilty of the attempted murder of his wife (because he did originally intend to murder her).

Substantial Step

In addition to intent, most states require that a prosecutor also establish that the defendant took a substantial step toward the completion of the crime. A substantial step goes beyond mere preparation to commit the crime. Simply discussing the crime or contemplating it with a friend is also not enough. Rather, the act must be such that it moves the defendant toward the successful completion of the crime, even though the crime is never fully executed. For example, if a person wishes to commit robbery , but merely considers a possible plan in his head, or talks about it with another, this is probably not enough to charge the person with attempt. However, if that same individual wishes to commit an arson, goes out and buys kerosene and matches, and drives to the building, but is arrested before starting the fire, this is probably enough to support a charge of attempted arson.

Failure to Complete

A charge of attempt also requires that the defendant did not actually complete the crime that he was committing. This is because attempt is a distinct and separate crime that cannot be simultaneously charged with the crime itself. Rather, if the defendant actually completed the crime, for instance, murder, he would be charged with murder rather than attempted murder.

Punishment

Punishments for attempt are typically less severe than the punishment would be had the crime been completed. Additionally, the punishment for an attempted crime is typically proportional to the severity of the crime at issue. Thus, a defendant will face a stiffer penalty for attempted murder than attempted theft. Some states have specific statutes addressing certain attempt crimes, such as attempted murder or attempted rape. You should check your state’s penal code to determine if this is the case in your state.

A defendant facing a charge of attempt may argue several defenses, including that he fully and completely abandoned his efforts to attempt the crime, or that the attempt was a logical or factual impossibility.

Conspiracy

A conspiracy occurs when two or more people agree to commit an illegal act and take some step toward its completion. For example, a group of individuals can be convicted of conspiracy to commit burglary even if the actual burglary never happens. Conspiracy is also unique in that, unlike attempt, a defendant can be charged with both conspiracy to commit a crime, and the crime itself if the crime is completed.

Elements of a Conspiracy

Conspiracy first requires a showing that two or more people were in agreement to commit a crime. This agreement does not have to be formal or in writing. All that is required is that the parties had a mutual understanding to undertake an unlawful plan. Second, all conspirators must have the specific intent to commit the objective of the conspiracy. This means that someone who is entirely unaware that she is participating in a crime cannot be charged with conspiracy. For instance, if two sisters agree to rob a bank and ask their brother to drive them to the bank without informing him of their intent to commit a crime, he cannot be charged with conspiring in the robbery. This specific intent requirement does not require that each individual knows all the details of the crime or all of the members of the conspiracy. As long as an individual understands that the act being planned is a criminal one and proceeds nonetheless, he can be charged with conspiracy.

Finally, in most states, conspiracy requires an “overt act” taken in furtherance of the crime. This overt act does not have to be the crime itself, nor does it have to be an act that is illegal. Rather, the act must merely be a step taken in furtherance of the criminal objective, such as buying a weapon or holding a meeting to plan an attack. The act must also take place after the group of individuals has agreed to conspire. Actions taken before the agreement do not fulfill this requirement. While an “overt act” implies an affirmative action, some courts have held that silence can be an overt act where it is intentional, planned, and done in furtherance of the conspiracy.

Defenses to Conspiracy

Like other inchoate crimes such as attempt, a defendant charged with conspiracy can raise the defense of abandonment or withdrawal. In order to do so, a defendant must show that he affirmatively communicated his withdrawal to his co-conspirators and took some positive action to withdraw from the conspiracy. Additionally, the defendant must have withdrawn from the conspiracy prior to its completion. Importantly, the defendant must have definitively cut ties with his fellow co-conspirators. If he continues to communicate with them or assist them in any way, this may prevent him from raising the defense of withdrawal.

Another defense available in conspiracy cases is the defense of entrapment. Entrapment means that the defendant was persuaded to participate in the conspiracy by a law enforcement officer or government agent and that he or she would not otherwise have become involved in the conspiracy. Specifically, the defendant must show that (1) the idea for the conspiracy came from an officer and not the defendant; (2) the defendant was persuaded to participate in the conspiracy by an officer and (3) before being persuaded, the defendant had no intention of committing the crime.

Both federal law and state law define the crime of conspiracy. Whether a person is charged under federal or state law depends upon the specific circumstances. Often, the federal government will prosecute persons allegedly involved in a conspiracy that spans multiple states, whereas a state government will generally handle matters that are entirely contained within its borders. If the crime underlying the conspiracy is a federal crime, this too may lead to federal, rather than state, prosecution.

Solicitation

Solicitation is an inchoate crime that involves seeking out another person to engage in a criminal act. A defendant may be charged with solicitation if he or she requests or induces another person to commit an act that would amount to a felony. The two elements of solicitation are the intent to have someone else commit a crime and an act committed in furtherance of convincing another person to commit a crime.

Intent

In order to establish the first element of a solicitation, a prosecutor must show that the defendant affirmatively intended to have another commit a crime. This means that an individual may not be charged with solicitation for mistakenly asking another to commit a crime, often because the individual does not realize that the act is itself a crime. For instance, assume a man believes that his neighbor agreed to let him borrow the neighbor’s lawnmower, but the neighbor did not actually consent. The man asks his son to go get the lawnmower for him from the neighbor’s yard. Even though it would be a larceny for the son to take the lawnmower, the man would likely not be guilty of soliciting his son because the man did not realize that taking the lawnmower was a crime.

The Act of Solicitation

Once an individual has the intent to commit a solicitation, the act of solicitation is very easy to complete. All that is required is that the individual encourage or convince another in some way to commit a crime. This can take the form of a request, suggestion or encouragement to complete the crime. It can also involve commanding, forcing, or inducing the other person to commit the crime. As soon as any of these occurs, the crime of solicitation has been completed. Unlike conspiracy or attempt, which require an additional act in furtherance of the crime itself, solicitation does not require that the solicited party actually take any action to commit the crime. Simply asking a person to commit a crime is enough. For example, if a boy walks up to his schoolmate on the street and asks him to shoplift a toy for him, this is solicitation, even if the schoolmate never acknowledges the boy’s request, enters the store, or completes the crime. In fact, should the solicited individual, such as the schoolmate, actually complete the crime, the defendant may be liable not only for solicitation, but also for aiding and abetting the crime as an accessory before the fact. The defendant cannot, however, be charged with solicitation and the crime itself. Like attempt, solicitation merges with the completed crime.

Punishment for Solicitation

Like attempt, solicitation of a crime is considered to be a lesser version of the crime itself. Accordingly, punishment for solicitation is typically less severe than the punishment would be had the crime been completed. Depending on the underlying crime solicited, solicitation may be charged as a felony or a misdemeanor.

In many states, special statutes have been enacted to address solicitation for prostitution and solicitation of minors. Because these are viewed as particularly offensive crimes, they are typically subject to stiffer penalties that may be as severe as the crime itself. For instance, in many states, solicitation of prostitution can result in jail time, and online solicitation of a minor may result in a defendant being required to register as a sex offender, even if they never actually met the child that was solicited.

Aiding and Abetting

The inchoate crime of aiding and abetting applies to an individual who assists in a crime, but does not commit the crime himself. This person is also known as an “accessory to the crime.” Aiding and abetting varies greatly by state, with some states varying the severity of the charge depending on the level of involvement of the accessory.

Accessory and Principal

Aiding and abetting requires the existence of both a “principal” and an “accessory.” The principal is the person who is primarily responsible for the crime and who likely ultimately committed the crime. If two or more individuals are responsible for a crime they can be charged as joint principals. The accessory is the person who assists with the crime but is not directly involved with its actual commission. Typically, the test for distinguishing between the two is whether the person directly contributed to the crime (a principal) or merely provided background help or assistance (an accessory).

Elements of Aiding and Abetting

A charge of aiding and abetting has three requirements. First, someone else must have committed a crime. Second, the defendant must have assisted that person in the commission of the crime. Third, the defendant must have had knowledge of that person’s criminal intent or criminal plans. An individual will not be found guilty for accidentally assisting in a crime. For instance, if a man knows that his friends have committed a crime and are trying to escape and he causes an accident in order to allow them to get away from the police, this could be aiding and abetting. However, if the same man is involved in an accident that allows burglars to get away from the police, but he has no knowledge of the burglary or the effect his accident would have, he cannot be charged with aiding and abetting.

An accessory to a crime can have knowledge of criminal intent before, or after, the commission of the crime. An individual who is aware of the crime before it occurs and gives assistance in preparation to commit the crime is called an “accessory before the fact.” If an individual only learns of the crime after it has taken place, but provides assistance in the aftermath of the crime, he is known as an “accessory after the fact.”

The types of actions that constitute assistance to a crime vary greatly. A person may provide advice, supplies, financial support, or engage in actions such as acting as a lookout or driving the getaway car. Where the assistance the accessory provides rises to the level of significant involvement in planning the crime, this can elevate the charge from aiding and abetting to conspiracy.

Punishment

In most states, accessories face lesser punishment than principals for crimes that are committed. However, other states consider accessories just as guilty as principals because they also intended for the crime to be committed. It is important to check the laws of your state in order to determine what punishments may apply.

It is also important to note that even if a principal is not convicted of a crime (perhaps because of mistaken identity or another defense), the accessory may still be charged with aiding and abetting if a crime was committed and he assisted in the commission of that crime.