Inchoate offense

Template:Short description Template:Criminal law

An inchoate offense, preliminary crime, inchoate crime or incomplete crime is a crime of preparing for or seeking to commit another crime. The most common example of an inchoate offense is "attempt". "Inchoate offense" has been defined as the following: "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent."<ref>Template:Cite book</ref><ref name=Infra>See lists and chapters of texts at McCord and McCord, Infra, pp. 185-213, and Schmalleger, Infra, pp. 105-161, 404.</ref>

IntentEdit

{{#invoke:Labelled list hatnote|labelledList|Main article|Main articles|Main page|Main pages}} Every inchoate crime or offense must have the mens rea of intent or of recklessness, typically intent. Absent a specific law, an inchoate offense requires that the defendant have the specific intent to commit the underlying crime. For example, for a defendant to be guilty of the inchoate crime of solicitation of murder, he or she must have intended for a person to die.Template:Fact

Attempt,<ref>See, e.g., "§ 110.00 Attempt to commit a crime. A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." N.Y. Penal L. § 110.00. Found at New York State Assembly government web site. Retrieved on 2010-11-01 from http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@LLPEN+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=39445639+&TARGET=VIEW.</ref> conspiracy,<ref>See, e.g., "§ 105.00 Conspiracy in the sixth degree. A person is guilty of conspiracy in the sixth degree when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct. Conspiracy in the sixth degree is a class B misdemeanor." N.Y. Penal L. § 105.00. Found at New York State Assembly government web site. Retrieved on 2010-11-01 from http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@LLPEN+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=39445639+&TARGET=VIEW.</ref> and solicitation<ref>See, e.g., "§ 100.00 Criminal solicitation in the fifth degree. A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct. Criminal solicitation in the fifth degree is a violation." N.Y. Penal L. § 100.00. Found at New York State Assembly government web site. Retrieved on 2010-11-01 from http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@LLPEN+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=39445639+&TARGET=VIEW.</ref> all require mens rea.<ref>Template:Cite book</ref>

On the other hand, committing an offense under the US Racketeer Influenced and Corrupt Organizations Act merely requires "knowing",<ref>James W.H. McCord and Sandra L. McCord, Criminal Law and Procedure for the paralegal: a systems approach, supra, p. 206, citing United States v. Anguilo (1st Cir. 1988).</ref> that is, recklessness. Facilitation also requires "believing",<ref>See, e.g., "§ 115.00 Criminal facilitation in the fourth degree. A person is guilty of criminal facilitation in the fourth degree when, believing it probable that he is rendering aid ...." N.Y. Penal L. § 115.00. Found at New York State Assembly government web site. Retrieved on 2010-11-01 from http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@LLPEN+&LIST=LAW+&BROWSER=EXPLORER+&TOKEN=39445639+&TARGET=VIEW.</ref> yet another way of saying reckless.Template:Fact

Intent may be distinguished from recklessness and criminal negligence as a higher mens rea.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>

Proof of intentEdit

Specific intent may be inferred from circumstances.<ref>See People v. Murphy, 235 A.D. 933, 654 N.Y.S. 2d 187 (N.Y. 3d Dep't 1997).</ref> It may be proven by the doctrine of "dangerous proximity", while the Model Penal Code requires a "substantial step in a course of conduct".<ref>James W.H. McCord and Sandra L. McCord, Criminal Law and Procedure for the paralegal: a systems approach, supra, pp. 189-190, citing People v. Acosta, (N.Y. 1993) and Model Penal Code section 5.01(1)(c).</ref>

Merger doctrineEdit

{{#invoke:Labelled list hatnote|labelledList|Main article|Main articles|Main page|Main pages}} The doctrine of merger has been abandoned in many jurisdictions in cases involving a conspiracy, allowing an accused to be convicted of both conspiracy and the principal offense. However, an accused cannot be convicted of either attempt or solicitation and the principal offense.<ref>Template:Cite journal</ref>

DefensesEdit

A number of defenses are possible to the charge of an inchoate offense, depending on the jurisdiction and the nature of the offense.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>

ImpossibilityEdit

{{#invoke:Labelled list hatnote|labelledList|Main article|Main articles|Main page|Main pages}} Impossibility is no defense to the crime of attempt where the conditions creating the impossibility are unknown to the actor.<ref>Template:Cite journal</ref>

Originally at common law, impossibility was a complete defense;<ref>See James Fitzjames Stephen, A History of the Criminal Law of England, Vol. II, 225 (1883)</ref> as it was under French law at one point.<ref>See Adolphe Chauveau, Faustin Hélie, Théorie du Code Pénal 382-3 (1843)</ref> Indeed, the ruling in Collins's Case L. and C. 471 was that an offender cannot be guilty of an attempt to steal his own umbrella when he mistakenly believes that it belongs to another. Although the "moral guilt" for the attempt and the actual crime were the same, there was a distinction between the harm caused by a theft and the harmlessness of an impossible act.<ref>James Stephen at 225.</ref> This principle was directly overruled in England with the rulings R v Ring and R v. Brown<ref>66 L.T. (N.S) 300, and 24 Q.B.D. 357.</ref> The example from R v Brown of an attempt to steal from an empty pocket is now a classic example of illustrating the point that impossibility is no defense to the crime of attempt when the conditions creating the impossibility are unknown to the actor. This principle has been codified in the Model Penal Code:

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime he: purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be. MPC § 5.01 (1)(a) (emphasis added).

Consequently, the principle is universal in the United States either in Model Penal Code jurisdictions (40 states) or those remaining common law jurisdictions influenced by the reasoning in R v Brown.<ref>{{#invoke:citation/CS1|citation |CitationClass=web }}</ref>

Other cases that illustrate the case law for impossibility defenses are People v. Lee Kong (CA, 1892), State v. Mitchell (MO, 1902), and United States v. Thomas (1962).

AbandonmentEdit

A defendant may plead and prove, as an affirmative defense, that they:

Stopped all actions in furtherance of the crime or conspiracy
Tried to stop the crime as it was ongoing
Tried to convince the co-conspirators to halt such actions, or reported the crime to the police or other authorities

DisputesEdit

Burglaries as inchoate crimesEdit

{{#invoke:Labelled list hatnote|labelledList|Main article|Main articles|Main page|Main pages}} There is some scholarly treatment of burglaries in American law as inchoate crimes, but this is in dispute. According to scholar Frank Schmalleger, burglaries "are actually inchoate crimes in disguise."<ref name=Schmalleger>Frank Schmalleger, Criminal Law Today: An Introduction with Capstone Cases, p. 110, (Upper Saddle River: Pearson Prentice Hall, 2006) Template:ISBN, citing Joshua Dressler, Understanding Criminal Law, 2nd ed., (Boston:Matthew Bender, 1995), p. 351.</ref>

Other scholars warn about the consequences of such a theory:

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Certainly, possession of burglary tools, in those jurisdictions that criminalize that activity, creates an inchoate crime (going equipped in the UK).<ref>See Schmalleger, Supra, p. 404.</ref> It is clear that:

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