Criminal Law Class Notes
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.
Attempt
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
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.