Inchoate offense
Encyclopedia
An inchoate offense, inchoate offence, or inchoate crime is the crime
of preparing for or seeking to commit another crime. The most common example of an inchoate offense is conspiracy
. "Inchoate offense" has been defined as "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent."
of intent or of recklessness, but most 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.
Attempt, conspiracy, and solicitation all require mens rea.
On the other hand, RICO
merely requires "knowing", that is, recklessness. Facilitation also requires "believing", yet another way of saying reckless.
Intent may be distinguished from recklessness and criminal negligence
as a higher mens rea.
requires a "substantial step in a course of conduct".
Originally at common law, impossibility was a complete defence; as it was under French Law at one point. 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. This principle was directly overruled in England with the rulings Reg. v. Ring and Reg. v. Brown The example from Reg. 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
:
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 Reg. v. Brown.
Other cases that illustrate the case law for impossibility defences are People v. Lee Kong
(1892), State v. Mitchell
(1902) and United States v. Thomas
(1962).
This is alluded to in Mae West
's famous saying:
, solicitation
, facilitation
, misprision of felony
(and misprision
generally), organized crime
, Racketeer Influenced and Corrupt Organizations Act
(RICO), and attempt
, as well as some public health
crimes; see the list below.
, burglaries "are actually inchoate crimes in disguise."
Other scholars warn about the consequences of such a theory:
Certainly, possession of burglary tools, in those jurisdictions that criminalize that activity, creates an inchoate crime. It is clear that:
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
of preparing for or seeking to commit another crime. The most common example of an inchoate offense is conspiracy
Conspiracy (crime)
In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
. "Inchoate offense" has been defined as "Conduct deemed criminal without actual harm being done, provided that the harm that would have occurred is one the law tries to prevent."
Intent
Every inchoate crime or offence must have the mens reaMens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
of intent or of recklessness, but most 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.
Attempt, conspiracy, and solicitation all require mens rea.
On the other hand, RICO
RICO
-Music:*Rico , a 2000 album by Matt Bianco*"Rico" , a 1998 song the Matthew Good Band from the album Underdogs*Rico International, a manufacturer of reeds, mouthpieces, and woodwind accessories...
merely requires "knowing", that is, recklessness. Facilitation also requires "believing", yet another way of saying reckless.
Intent may be distinguished from recklessness and criminal negligence
Criminal negligence
In the criminal law, criminal negligence is one of the three general classes of mens rea element required to constitute a conventional as opposed to strict liability offense. It is defined as an act that is:-Concept:...
as a higher mens rea.
Proof of intent
Specific intent may be inferred from circumstances. It may be proven by the doctrine of "dangerous proximity", while the Model Penal CodeModel Penal Code
The Model Penal Code is a statutory text which was developed by the American Law Institute in 1962. The Chief Reporter on the project was Herbert Wechsler. The current form of the MPC was last updated in 1981. The purpose of the MPC was to stimulate and assist legislatures in making an effort to...
requires a "substantial step in a course of conduct".
Merger doctrine
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.Defenses
There are a number of possible defences to the charge of an inchoate offence, depending on the jurisdiction and the nature of the offence.Impossibility
Impossibility is no defence to the crime of attempt where the conditions creating the impossibility are unknown to the actor.Originally at common law, impossibility was a complete defence; as it was under French Law at one point. 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. This principle was directly overruled in England with the rulings Reg. v. Ring and Reg. v. Brown The example from Reg. 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
Model Penal Code
The Model Penal Code is a statutory text which was developed by the American Law Institute in 1962. The Chief Reporter on the project was Herbert Wechsler. The current form of the MPC was last updated in 1981. The purpose of the MPC was to stimulate and assist legislatures in making an effort to...
:
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 Reg. v. Brown.
Other cases that illustrate the case law for impossibility defences are People v. Lee Kong
People v. Lee Kong
People v. Lee Kong 95 Cal. 666, is a case in which the defendant claimed the "impossibility" defense to charges of assault, on the basis of a mistake in fact...
(1892), State v. Mitchell
State v. Mitchell
State v. Mitchell, 170 Mo. 633, 71 S.W. 175 , is a precedent-setting decision of the Supreme Court of Missouri which is part of the body of case law involving the prosecution of failed attempts to commit a crime...
(1902) and United States v. Thomas
United States v. Thomas
United States v. Thomas 13 U.S.C.M.A. 278 is a famous case of a military court-martial involving a failed attempt to commit a crime, in this case, rape and the use of the "impossibility" defense.-Circumstances:...
(1962).
Abandonment
A defendant may plead and prove, as an affirmative defense, that they:- Stopped all actions in furtherence 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
This is alluded to in Mae West
Mae West
Mae West was an American actress, playwright, screenwriter and sex symbol whose entertainment career spanned seven decades....
's famous saying:
Examples
Examples of inchoate offenses include conspiracyConspiracy (crime)
In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
, solicitation
Solicitation
Literally, solicitation means: 'urgently asking'. It is the action or instance of soliciting; petition; proposal. In criminal law, it most commonly refers to either the act of offering goods or services, or the act of attempting to purchase such goods or services...
, facilitation
Facilitation
The term facilitation is broadly used to describe any activity which makes tasks for others easy. For example:* Facilitation is used in business and organizational settings to ensure the designing and running of successful meetings....
, misprision of felony
Misprision of felony
Misprision of felony was an offence under the common law of England and was classified as a misdemeanour. It consisted of failing to report knowledge of a felony to the appropriate authorities.Exceptions were made for close family members of the felon....
(and misprision
Misprision
Misprision is a term of English law used to describe certain kinds of offence. Writers on criminal law usually divide misprision into two kinds, negative or positive....
generally), organized crime
Organized crime
Organized crime or criminal organizations are transnational, national, or local groupings of highly centralized enterprises run by criminals for the purpose of engaging in illegal activity, most commonly for monetary profit. Some criminal organizations, such as terrorist organizations, are...
, Racketeer Influenced and Corrupt Organizations Act
Racketeer Influenced and Corrupt Organizations Act
The Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization...
(RICO), and attempt
Attempt
Attempt was originally an offence under the common law of England.Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself: the actions must go beyond mere preparation....
, as well as some public health
Public health
Public health is "the science and art of preventing disease, prolonging life and promoting health through the organized efforts and informed choices of society, organizations, public and private, communities and individuals" . It is concerned with threats to health based on population health...
crimes; see the list below.
Burglaries as inchoate crimes
There is some scholarly treatment of burglaries in American law as inchoate crimes, but this is in dispute. According to scholar Frank SchmallegerFrank Schmalleger
Frank Schmalleger is the director of the Justice Research Association. In 1974, he received a Ph.D. in sociology from Ohio State University. He is a professor emeritus at the University of North Carolina at Pembroke...
, burglaries "are actually inchoate crimes in disguise."
Other scholars warn about the consequences of such a theory:
Certainly, possession of burglary tools, in those jurisdictions that criminalize that activity, creates an inchoate crime. It is clear that:
List of inchoate offenses
- AccessoryAccessory (legal term)An accessory is a person who assists in the commission of a crime, but who does not actually participate in the commission of the crime as a joint principal...
- AttemptAttemptAttempt was originally an offence under the common law of England.Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself: the actions must go beyond mere preparation....
- See State v. MitchellState v. MitchellState v. Mitchell, 170 Mo. 633, 71 S.W. 175 , is a precedent-setting decision of the Supreme Court of Missouri which is part of the body of case law involving the prosecution of failed attempts to commit a crime... - Compounding a felonyCompounding a felonyCompounding a felony was an offence under the common law of England and was classified as a misdemeanour. It consisted of a prosecutor or victim of an offence accepting anything of value under an agreement not to prosecute, or hamper the prosecution of, a felony...
- Compounding treasonCompounding treasonCompounding treason is an offence under the common law of England. It is committed by anyone who agrees for consideration to abstain from prosecuting the offender who has committed treason.It is still an offence in England and Wales, and in Northern Ireland...
- ConspiracyConspiracy (crime)In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
- FacilitationFacilitationThe term facilitation is broadly used to describe any activity which makes tasks for others easy. For example:* Facilitation is used in business and organizational settings to ensure the designing and running of successful meetings....
- MisprisionMisprisionMisprision is a term of English law used to describe certain kinds of offence. Writers on criminal law usually divide misprision into two kinds, negative or positive....
- Misprision of felonyMisprision of felonyMisprision of felony was an offence under the common law of England and was classified as a misdemeanour. It consisted of failing to report knowledge of a felony to the appropriate authorities.Exceptions were made for close family members of the felon....
- Misprision of treasonMisprision of treasonMisprision of treason is an offence found in many common law jurisdictions around the world, having been inherited from English law. It is committed by someone who knows a treason is being or is about to be committed but does not report it to a proper authority...
- Racketeer Influenced and Corrupt Organizations ActRacketeer Influenced and Corrupt Organizations ActThe Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization...
(RICO) - SolicitationSolicitationLiterally, solicitation means: 'urgently asking'. It is the action or instance of soliciting; petition; proposal. In criminal law, it most commonly refers to either the act of offering goods or services, or the act of attempting to purchase such goods or services...
- StalkingStalkingStalking is a term commonly used to refer to unwanted and obsessive attention by an individual or group to another person. Stalking behaviors are related to harassment and intimidation and may include following the victim in person and/or monitoring them via the internet...
- Mail fraud
See also
- Impossibility defenseImpossibility defenseAn Impossibility defense is a criminal defense occasionally used when a defendant is accused of a criminal attempt that failed only because the crime was factually or legally impossible to commit. Factual impossibility is rarely an adequate defense at common law. In the United States,...
- Criminal lawCriminal lawCriminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
- Merger doctrine (criminal law)
- PrecrimePrecrimeThe terms precrime and postcrime are related to the legal concepts of crimes and misdemeanors. Both of the terms precrime and postcrime have variations in meanings after years of historical usage.-Precrime:...
External links
- O'Connor, T. (August 5, 2010). "Inchoate Crimes," MegaLinks in Criminal Justice. Retrieved from http://www.drtomoconnor.com/3010/3010lect03a.htm.