Criminal Law Class Notes 11/14/03


Inchoate[1] offenses


So far, we’ve been looking at completed offenses.  Now we’re going to look at incomplete or failed offenses.


Consider the range of conduct:


1.     Someone thinks about committing a crime (we don’t punish this).

2.     Someone solicits a crime.

3.     Someone conspires to commit a crime.

4.     Someone attempts a crime.

5.     Someone completes a crime.


There are a number of crimes that exist in law that we call inchoate offenses.  We’ll only talk about attempt directly in this class.  We’ll skip solicitation and conspiracy, but we need to know a few important things about these offenses.


There are other inchoate offenses, like stalking.  We’ve made something a crime where nothing has happened yet but we fear something will happen.  Burglary is also, in some sense, an inchoate crime.  It’s breaking and entering with intent to commit a felony…it doesn’t matter if the felony isn’t completed.


Conspiracy and solicitation


Conspiracy is very complicated.  There’s a lot of law in that area.  This is what we need to know: at common law, conspiracy is agreement between two or more persons to commit an unlawful act.  There’s a lot of complexity in those words that we won’t cover.  But the crime is the agreement to commit an unlawful act.  It’s not an act!  Before you’ve done anything towards committing the actual crime, you could be found guilty of conspiracy.


Solicitation is the act of asking someone else to commit a crime.  The moment you ask someone to commit a crime, you’ve committed solicitation.  It’s a one-person crime!  It comes even earlier than conspiracy!  If the other person says no when you ask them to help you commit a crime, it’s solicitation.  If they say yes, it’s conspiracy!


The line between though, solicitation, and conspiracy can be very thin.  Attempt, on the other hand, will take somewhat more time to materialized.


There are specialized problems and issues regarding inchoate offenses.  Note that you can sometimes have double and triple inchoate offenses.  These bring us closer and closer to punishing thought.  Can you have an attempted solicitation?  Sure!  You can ask someone to help you kill someone, and if they never get the message it’s failed solicitation: attempted solicitation.


The issue is not only where the law is, but also where the law ought to be.  At what point should the government be able to intervene in the process of preparing to commit a crime?


Why would we have an inchoate offense?  What are the arguments for recognizing a crime like attempt?  It’s a way that law enforcement can prevent crime.  We don’t want people murdered, robbed, or raped.  So if we have someone stalking an individual or pointing a gun at someone, we want to give law enforcement a way to stop potential criminals in the act.




Here’s some terminology: what’s the difference between a complete and an incomplete attempt?  In a complete attempt, the offender does everything necessary to complete the crime but they fail (e.g. you shoot someone but they don’t die).  In an incomplete attempt, the offender gets stopped short from completing the attempt.


Preventive law enforcement can’t explain why we have inchoate offenses for complete attempt.  How else can we explain the punishment of complete attempts?  We might say that they are as culpable as the actual offender, but they just got lucky (or unlucky).  Also, the person who failed this time might succeed next time.  That person might be dangerous.  Finally, complete attempts may be subject to general deterrence.


Why might murders go down while assaults go up?  It is suggested that people who live in poor areas with poor emergency room care died, while people in wealthy areas with good emergency room care were saved.  So as medical care gets better, more people survive murder attempts.


So if you want to kill someone, try to kill them in a poor area.  But that doesn’t seem to have anything to do with one’s dangerousness or moral culpability.  Why should the law recognize luck?  It is thus suggested that an attempted crime should get the same punishment as a completed crime.


There are a whole bunch of arguments for inchoate offenses.  General deterrence is not an argument for inchoate offenses (or so Dressler says).


There are also arguments as to why we maybe shouldn’t punish inchoate offenses.


McQuirter v. State


McQuirter alleged followed a woman and children around, but never did anything.


We should be careful about how quickly we should arrest.


·        One risk is that the sooner you arrest a person, the more likely it is that you’re punishing an innocent person.

·        Big Brother!  Even if someone is guilty, how soon do we really want government interfering?  We do want the government to stop crimes, but how soon?  Even if McQuirter was planning harm, at what point do we feel comfortable with having the officer drag the guy away in handcuffs?


What are we going to punish McQuirter for?  He was arrested for “attempt to commit an assault with intent to rape”.  Assault, at common law, was an attempted battery.  If you hit someone, it’s a battery.  If you attempt to hit someone, it’s an assault.  So, we can parse this crime as “attempt to attempt a battery with intent to rape”.  This is a triple inchoate crime!


You can’t separate criminal law from criminal procedure.  Note that Terry v. Ohio allows a police officer, short of arresting a person, to forcibly stop people and briefly question them.  Terry is the most important case in criminal procedure.  Terry and some other guys were walking back and forth in front of a jewelry shop late at night.  The cop thought they were “casing the joint”.  The cop forcibly stopped them and patted them down for weapons.  He found that Terry had a gun.  Terry got arrested and taken off the street.


What would the cop have arrested these guys for if there were no guns?  He might have arrested them for loitering.  That’s a classic inchoate offense!  Loitering statutes were declared unconstitutional at about the same time.  What doctrine explains why it might be unconstitutional to have statutes against loitering or being a vagrant?  Void for vagueness!  What’s wrong with that?  It gives cops too much power!  There was evidence that you got picked up if you were black in a white community, or a hippie.  The Supreme Court declared these laws unconstitutional, but in so doing took away the power to get criminals off the streets.  However, the Supreme Court gave cops the power to detain people for a short period of time to figure out what’s going on.


How much punishment?


Should attempted bank robbery get the same punishment as completed bank robbery, or less?  What are the arguments for punishing as much?  What are the arguments for punishing less?


What about the social harm?  If there was less harm, shouldn’t there be less of a penalty?  That’s almost exclusively a utilitarian argument.  Utilitarians are concerned with what will happen in the future.  Retributivists are concerned with having you “pay your debt to society”.  But there are two kinds of retributivists: “harm” retributivists and “culpability” retributivists.  “Culpability” retributivists would say that we should punish attempt and completed offense equally.


To a retributivist, inchoate laws themselves create a problem: where’s the harm?  If I try to kill Mr. X but I fail, where’s the harm?  If there’s no harm, maybe there should be no punishment.


Recall one definition of social harm: “[N]egation, endangering, or destruction of an individual, group, or state interest, which [is] deemed socially valuable.”[2]


Compare this to drunk driving.  If you see someone driving drunk, we get scared.  That’s a harm.  It forces us to behave differently.  That’s also a harm.


There’s also a utilitarian argument for punishing attempt less than a completed offense: marginal deterrence.  If you’re starting to attempt a crime, but you still have an incentive to stop early, you may still be deterred.


Objectivism versus subjectivism


An objectivist doesn’t look inside the head of the offender.  You don’t punish an attempt unless and until you can find objectively that there’s harm.


A subjectivist says, basically, “Who cares about the harm?”  They are much more focused on what the person has in mind, expressed through their statements or their conduct.


An objectivist who focuses on harm will likely say “less punishment for less harm”.  A subjectivist will say “equal punishment for equal culpability”.


Model Penal Code generally treats attempted crimes as severely as completed crimes.  Therefore, they are subjectivist.  The exception is murder or first-degree felonies.  For the most serious crimes, they give a benefit to the attempter by reducing the grade of the crime.


Dressler tries to shoot the clock, but kills Mr. X instead.  At common law, that’s murder by depraved heart.  But if Mr. X doesn’t die, it’s not attempted murder.


At common law, the mens rea of attempt is the intent to do the act that constitutes the attempt and the intent that the underlying offense be committed.


Attempt is a specific intent crime.  It requires the specific intent to have some future act happen.  Attempt always requires intent.  Even if the underlying crime doesn’t require intent (like extreme reckless murder), the attempt does require intent.


People v. Gentry


This looks a lot like a battered wife case.  It seems highly unlikely that the events unfolded the way they did.  The wife probably perjured herself at trial.


Consider some variations on the facts of this case under the Model Penal Code.


If you’re dealing with a completed attempt, use § 5.01(1)(a) or (b).  If you’re dealing with an incomplete attempt, use § 5.01(1)(c) and § 5.01(2).  If you’re dealing with a conduct offense, use § 5.01(1)(a).  If you’re dealing with a result crime, use § 5.01(1)(b).


Did Gentry complete his attempt?  Yes.  Should we look at § 5.01(1)(a) or (b).  Is murder a conduct crime or a result crime?


If Gentry threw gasoline on his girlfriend in order to kill her, that’s evidence of purpose.  He would be guilty of attempted murder.  Causing a particular result, her death, is an element of the crime.  He did the actions with the purpose of causing that result.  This is consistent with common law.


What if Gentry did it to “teach her a lesson”, but he knew that her death “might result”?  It’s still a completed attempt, with the result being death.  But his state of mind has changed.  Is he still guilty of attempted murder under the statute?  It’s different to say that you believe something “might happen” versus “will happen”.  This case sounds more like reckless behavior.  This is almost like “knowingly”.  But in this case, he’s not guilty.


If he sets his girlfriend on fire without knowing how dangerous his actions were, he’s definitely not guilty of attempted murder.


One more point before we proceed to the actus reus of attempt.  Bob believes that his actions will cause the death of the people.  This will make him guilty under the Model Penal Code of attempted murder.


What’s the answer at common law?  We don’t know how we solve this.  There is a split of authority.  Many jurisdictions say that when you use the common law definition of attempt, what we really mean is purpose, not knowledge.  Some jurisdictions say that intent means purpose or knowledge.  They say he basically acted purposely.  We have a split.  The Model Penal Code gives us an answer by having the word “belief” in there.  The Model Penal Code would convict Bob, but common law would be split.


Back to Class Notes

[1] Being only partly in existence or operation; especially : imperfectly formed or formulated : FORMLESS (

[2] Dressler, p. 129