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 What is an Incomplete Crime?

An inchoate crime, also called an incomplete crime or an attempted crime, is an act which involves the intent to commit a specific criminal offense. An inchoate crime is separate and distinct from the criminal offense because courts want to stop crimes from actually occurring.

In general, an individual cannot be convicted for an incomplete crime in addition to the actual crime. For example, an individual cannot be convicted of both attempted murder and murder.

However, there is an exception for the crime of conspiracy. An individual may be charged with conspiracy to commit a specific crime as well as the actual crime if the offense was completed.

In order to be convicted of an inchoate crime, the prosecution is required to establish beyond a reasonable doubt that the defendant had the specific intent to commit the actual crime.

Can I be Convicted of Attempting a Crime?

Yes, an individual can be convicted of attempting a crime as well as for asking another individual to commit a crime and for planning with someone else to commit a crime. These types of crimes are referred to as incomplete or inchoate crimes.

In order for an individual to be convicted of committing a crime, they must have made an effort to perform that crime and taken a substantial step beyond mere preparation. There are three main categories of incomplete crimes, including:

  • Attempt;
  • Solicitation; and
  • Conspiracy.

The offense of attempt requires that the perpetrator had the intent to commit the crime. For example an individual cannot be convicted of attempted robbery unless they actually intended to rob another individual.

Attempt requires the perpetrator take a step beyond mere preparation. The standard used for determining if a step the perpetrator took went beyond mere preparation varies from state to state.

Solicitation involves asking another individual to commit a crime. It requires the intent to promote or facilitate a crime as well as inducting or encouraging another individual to commit the offense.

An individual may be convicted of solicitation even if they do not actually convince another individual to commit the criminal offense. A typical example of this is solicitation of prostitution.

An individual may be convicted of conspiracy if they agree with one or more individuals to pursue an unlawful objective, for example, cheating at gambling. Conspiracy requires that an individual intended to commit a crime that they agreed with one or more other individuals to commit.

It also requires that one or more of the co-conspirators perform an overt act which is committed to further the conspiracy. In the majority of jurisdictions, even trivial actions may be considered overt acts.

What Kind of Punishment Will I Face if the Underlying Crime is a Felony?

If the underlying crime for a conspiracy was a felony, a defendant may face two potential types of punishments. If the potential punishment for the underlying felony does not include life in prison or death, a defendant may face:

  • One year in prison to one-half of the maximum time in prison that a defendant would face if they were convicted of the underlying felony;
  • One-half of the maximum fine the individual would have faced if they were convicted of committing the underlying felony; or
  • Both a fine and prison time.

The penalty a defendant will face for conspiring to commit a felony offense involving the death

What are the Possible Defenses to Criminal Attempt?

There are several defenses that may be available for incomplete crimes, or criminal attempt, including:

  • No specific intent: If the perpetrator did not have the specific intent to perpetrate the crime, then they cannot be found guilty. Specific intent is required for an incomplete crime because otherwise, the act would have been accidental or innocent;
  • Mere preparation: Even if the perpetrator had the specific intent to commit the crime, they would not be guilty of attempting the crime if they did not take a substantial step beyond mere preparation of the scheme;
  • Withdrawal from the conspiracy: It is important to note that a co-conspirator would be liable for all crimes committed in furtherance of a conspiracy, even if the co-conspirator did not commit those crimes or intend for those crimes to occur;
    • The fact that a co-conspirator withdraws from the conspiracy may be a defense to crimes committed as part of a conspiracy. However, in order for this defense to apply, the co-conspirator must withdraw before any act in furtherance of the conspiracy has been completed;
    • In addition, the co-conspirator must have taken affirmative steps to defeat the conspiracy;
      • For example, the co-conspirator could inform local authorities before the conspirators take criminal actions or could voluntarily block actions to be taken by the remaining conspirators in furtherance of the conspiracy;
  • Feigned agreement: In defense to a charge of conspiracy, an individual who is charged with the crime may attempt to show that the agreement made to commit a crime was feigned or fake, which will negate the specific intent element for the actual crime to be completed.
    • If, however, the defendant enters into an agreement to engage in illegal conduct with an undercover law enforcement officer, the defendant may still be guilty of conspiracy;
  • Mistake of law for conspiracy: If a defendant actually believed that they were committing a lawful act, then the defendant did not have the specific intent to commit the crime;
    • It is important to note that this defense is only applicable to specific intent crimes;
  • Voluntary intoxication: Voluntary intoxication is not a complete defense, but it may be used to negate certain specific intent crimes, such as attempts. An individual can still be guilty of another lesser offense that did not need specific intent; and
  • Legal impossibility: Legal impossibility is where an individual plans to commit an act believed to be a criminal offense but is not criminal.

What about Factual Impossibility?

If an individual cannot commit a crime due to facts they do not understand, they may still be guilty of the crime if they had the criminal intent. For example, an individual may be found guilty of buying cocaine, even if what they actually bought was powdered sugar.

What are the Penalties for Incomplete Crimes?

The type of crime that is solicited as well as the type of conspiracy a defendant is convicted of will determine the punishment of the crime. The more severe the crime that was solicited, attempted, or agreed to commit, the more severe the sentence and punishment may be.

The penalties an individual may face for participating in a conspiracy will often be based upon the penalties that are implemented related to the underlying offense. Additionally, the members of a conspiracy are criminally responsible for all of the crimes that are committed to further the conspiracy.

For example, attempted murder is a serious charge with serious potential penalties. If an individual is convicted of attempted murder, they may face life in prison.

Attempting to commit a crime that has a maximum sentence of life imprisonment may be punishable by imprisonment in a state prison for 5-10 years. Attempting to commit a criminal offense that carries a maximum penalty of less than life imprisonment may result in imprisonment in a state prison for ½ of the prison term for the offense.

Attempting to commit a crime for which the punishment is a fine may be punished by a fine of no more than half of the largest possible fine for the complete offense.

Do I Need an Attorney if I am Accused of an Incomplete Crime?

If you have been accused of an incomplete crime, it is important to consult with a criminal defense attorney as soon as possible. Your attorney can advise you of your rights, your available defenses, and answer any questions you may have about the complicated legal system.

As noted above, you may face severe penalties if you are convicted of an incomplete crime. Your attorney may be able to negotiate a plea bargain with the prosecution or, in some cases, have your charges reduced or dismissed.

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