Inchoate Offenses: Attempt, Solicitation, Conspiracy, and Facilitation - Prof. Gerald L. M, Study notes of Criminal Law

Download Inchoate Offenses: Attempt, Solicitation, Conspiracy, and Facilitation - Prof. Gerald L. M and more Study notes Criminal Law in PDF only on Docsity! Crim. Law 3250 Fall 2012 Melton OUTLINE LESSON SIX INCHOATE OFFENSES LESSON ORIENTATION: Chapter Five in the text OVERVIEW: The word inchoate means “underdeveloped” or “unripened.” Thus, an “inchoate offense” is one involving activity or steps directed toward the completion of a crime. In this lesson we will examine these incomplete crimes and discuss the criminal liability associated with them. LEARNING OBJECTIVES:  The nature of inchoate offenses  The crime of attempt  The crime of solicitation  The crime of conspiracy  The crime of facilitation DISCUSSION: THE NATURE OF INCHOATE OFFENSES Inchoate crimes are incomplete crimes which must be connected to a substantive crime to obtain a conviction. Yet essential to an inchoate offense is that there are steps or activity taken toward the completion of a specific crime. Such offenses are also referred to as anticipatory offenses. At common law it is a misdemeanor to counsel, incite, or induce another to commit or to join in the commission of any offense. Rex v. Higgins, 102 Eng. Rep. 269 (1801) Why should such things be criminalized? Federal and state statutes define such offenses today and contrary to common law, many jurisdictions now classify them as felonies. The general anticipatory offenses are: attempt, solicitation and conspiracy. To these three, I add a fourth: facilitation. Page 1 of 6 These are not charges that stand by themselves. For example, you will not see someone charged with the crime of attempt. The charge will be “attempted murder” or “conspiracy to sell or deliver drugs.” In other words the inchoate offense will be linked to another crime. Absent a specific law, an inchoate offense requires that the defendant have the specific intent to commit the underlying crime. An inchoate crime may be found when the substantive crime failed due to arrest, impossibility, or an accident preventing the crime from taking place. For example, a person may be found guilty of the inchoate crime of attempted murder for firing an unloaded gun at someone with intent to kill. Possession of a listed chemical with intent to manufacture a controlled substance and possession of a prohibited flask or equipment with intent to manufacture a controlled substance are other examples of inchoate crimes. THE CRIME OF ATTEMPT The most frequently charged inchoate offense. At common law it was an offense to attempt any felony or misdemeanor and most modern statutes continue this approach. The basic principle that bad thoughts alone are not punished applies no less to attempt. Yet since attempt could be viewed as coming close to this, the requirements to prove attempt are generally defined in such a way as to provide reasonable assurance that those convicted would have committed the target crime if left alone. Note the doctrine of merger as it applies to attempt. Common law of attempt: 1. Actus reus: no single common law test for when an attempt has occurred. The tests focused on how close the actor was to the completion of the target offense. a. last act test b. dangerous proximity test c. physical proximity test Page 2 of 6 Specifically the Pinkerton Rule provides: A. B. Another special principle or rule applicable to the crime of conspiracy is Wharton’s Rule. The rule provides: The Tennessee statute on conspiracy is an example of a modern statutory approach . See: Tenn. Code Ann. § 39-12-103 THE CRIME OF FACILITATION To the traditional anticipatory offenses previously examined in this lesson, I add the offense of facilitation. The crime of facilitation does not have a common law background. It is a creation of modern statutory schemes. In criminal law, a statutory offense rendering one guilty when, believing it probable that one is aiding a person who intends to commit a crime, one engages in conduct which assists that person in obtaining the means or opportunity to commit the crime and in fact one's conduct does aid the person to so commit it. See N.Y. Penal Law §115. For example, if a store owner sells a gun to someone who is enraged and uttering threats about killing a third party, the store owner may be guilty of criminal facilitation. At common law, knowing facilitation may give rise to liability for aiding and abetting if the requisite mens rea can be established for the accessorial liability, but there was no distinct offense of criminal facilitation as such at common law. Compare accomplice; conspiracy. See: Barron’s Law Dictionary: Facilitation In some jurisdictions, criminal "facilitation" laws do not require that the primary crime be actually committed as a prerequisite for criminal liability. These include state statutes making it a crime to "provide" a person with "means or opportunity" to commit a crime, "believing it probable that he is rendering aid to a person who intends to commit a crime." Some states require proof that the felony was committed. Tennessee falls into this group. The Tennessee statute: Tenn. Code Ann. § 39-11-403 Page 5 of 6 KEY TERMS:  inchoate crime  anticipatory offenses  attempt  doctrine of merger  withdrawal or abandonment  impossibility (factual impossibility and legal impossibility)  solicitation  unsuccessful communication  renunciation  conspiracy  overt act  Pinkerton Rule  Wharton’s Rule  facilitation Page 6 of 6