Criminal Law

XII. Incomplete Crimes

Because society wants to prevent serious social harm before it happens, governments created the crime categories of solicitation, conspiracy, and attempt. Even though these offenses are crimes all by themselves, the main reason for their creation was the understanding that each crime was a preliminary or anticipatory offense that was committed with the same evil intent but a greater target in mind (Scheb & Scheb, 2006). The inchoate offenses of solicitation, conspiracy, and attempt are discussed below.

A. Solicitation

Solicitation is a substantive crime in and of itself. This crime occurs as soon as the solicitation is made. Simply put, the crime of solicitation is in the asking. It does not matter if the solicited person accepts the offer or rejects the advance. The actus reus of solicitation consists of words that create an inducement, which is defined as any of the following: begging, ordering, counseling, commanding, inducing, instructing, advising, tempting, imploring, asking, instigating, urging, requesting, entreating, persuading, inciting, procuring, or enticing another to commit a crime included in the list of prohibited target offenses in a state’s solicitation statute. The elements of solicitation for most jurisdictions include the soliciting of another to commit a crime specified in the statute with the intent that such crime will be committed. Most states also include the following evidentiary burden: The charge must be supported by the testimony of two witnesses or one witness and corroboration (Hazard, 1983). Solicitation was first recognized in 1801 in the case of Rex v. Higgins (1801). In this case, a person asked a servant to steal the property of his master. The servant refused. Though the facts of this case were simple, it demonstrates that solicitation is committed when a person requests another to commit a crime, even if the person solicited refuses to cooperate.

Solicitation remains a specific-intent crime in most states, as it was a common law. In other words, one must have the mens rea (guilty intent) for solicitation. The reason for this element is to protect First Amendment rights of speakers (e.g., it is lawful to advocate for civil disobedience) and to keep people from being prosecuted for solicitation when their comments to another were made in jest, with no intent that the crime actually be committed. Solicitation can be committed even if it is impossible to commit the target offense due to a circumstance unknown to the solicitor. For example, if Fred solicits Barney to kill Mr. Slate but Mr. Slate was killed in a car accident the day before, Fred can still be convicted of solicitation of murder if he did not know that Mr. Slate was deceased. If the specific intent exists at the same time as the solicitor’s request, the crime of solicitation has been committed.

B. Conspiracy

The definition of conspiracy is an agreement between two or more people to commit an unlawful act or to do a lawful act by unlawful means. This common law definition does not require any act beyond the agreement (Scheb & Scheb, 2006, p. 97).

Most state statutes now require the following five elements to prove a conspiracy has occurred: There must be (1) an agreement or understanding (2) between two or more persons (3) with the specific intent to commit (4) either a crime or a lawful purpose by unlawful means (5) when accompanied by some overt act beyond mere agreement (Singer, 2002, p. 1546).

An overt act doesn’t have to be part of an attempt to commit the target crime. It can be any act, even a trivial one that is done in furtherance of the conspiracy. A single overt act by any party to a conspiracy is sufficient for the prosecution of all participants of the conspiracy. A conspirator can join the conspiracy after the overt act is done and still be liable. This overt act does not have to be a crime itself. Some examples of overt acts include the following: paying a hit man, telephoning a supplier to arrange delivery of drugs, calling a friend to give an insider tip in a stock-trading conspiracy, buying gasoline in an arson conspiracy. Overt acts provide proof that the agreement to commit a crime was sincere (Scheb & Scheb, 2006, pp. 92–96).

C. Attempted Crimes

Unlike solicitation and conspiracy, which are infrequently charged, attempts to commit crimes are regularly prosecuted. This is due to the increase in reporting by victims and witnesses and the availability of more obvious evidence of guilt. In general terms, an attempt consists of the following: (1) an overt act, (2) beyond mere preparation, that moves toward committing a crime that is legally possible to commit, (3) done with the specific intent to commit the target crime, (4) which, if it is not interrupted or stopped, would result in completion of the crime (Neubauer, 2008, p. 351).

Immoral thoughts alone are not enough to charge an attempt. Each statute requires that the defendant try to commit the crime he or she is charged with attempting. The prosecutor must show some overt act that demonstrates this. The acts must go so far that they would result in the completion of the crime if not prevented by factors unknown to the defendant. All attempts are specific-intent crimes. Even if the target offense is a general-intent crime, the defendant must intentionally commit the acts that constitute the actus reus, and these acts must be done with the specific intention of committing the target crime (Kadish, 1987). For example, Fred shoots a gun at Barney and misses. Fred intended to kill Barney and committed an act—shooting the gun—which would have resulted in murder if the act had been completed. The act was not completed because the bullet did not strike Barney. Fred has committed an attempted murder.

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