Inchoate Crimes Under the Law

In most criminal cases, the prosecution charges the defendant with completing a certain course of conduct that violated a law. Inchoate or “incomplete” crimes diverge from this framework. They often involve steps toward the commission of a crime, or actions that further the commission of a crime. While they may seem less blameworthy at face value, inchoate crimes carry harsh penalties in many jurisdictions. A defendant thus should take these types of charges seriously. They should not try to persuade police officers or prosecutors of their innocence on their own. Instead, they should consult an attorney and rely on their professional skills and insights to navigate the case.

Below is an overview of the most common inchoate crimes: attempt, aiding and abetting, conspiracy, and solicitation.

Attempt: Definition and Defenses

A defendant may be convicted of attempt if they intended to commit a particular crime, and they took a “substantial step” or a similar act toward committing the crime. Sometimes a defense simply involves challenging either of these elements, claiming that the defendant lacked the required intent or did not do anything to set the process of committing the crime in motion. Defendants in some jurisdictions also may be able to raise a defense called withdrawal or abandonment. This usually means that the defendant willingly renounced their criminal plan.

Aiding and Abetting: Definition and Defenses

A charge of aiding and abetting may arise when someone other than the defendant committed a crime. The defendant must have assisted, encouraged, or otherwise supported that person in an effort to facilitate the crime. As with attempt, defenses to aiding and abetting may include withdrawal or lack of intent. The defendant may have simply been present at the crime scene without helping the perpetrator. (If they provided assistance after the crime occurred, such as helping the perpetrator avoid arrest, they might be charged as an accessory after the fact, which may be a separate offense.)

Conspiracy: Definition and Defenses

In general, conspiracy involves an agreement between two or more people to commit a crime, as well as an overt act furthering the criminal objective by at least one of the people involved. The defendant must have intended to achieve the goal of the conspiracy. Defense strategies might include arguing that the defendant never entered into an agreement or that they were forced to participate against their will. They also might raise a withdrawal defense under certain circumstances. Sometimes errors or misconduct by law enforcement, such as an unconstitutional search and seizure, might support a defense.

Solicitation: Definition and Defenses

The relatively amorphous crime of solicitation involves asking, directing, or otherwise inciting someone to commit an offense, while intending that they engage in the criminal conduct. (Some solicitation statutes apply only to certain crimes.) A prosecutor can get a conviction even if the other person did not carry out the request or order. Defenses may include arguing that the defendant did not genuinely want the other person to commit the crime, or that someone fabricated the allegation. A withdrawal defense also may be available in some cases, or a defendant occasionally might argue that the police “entrapped” them into soliciting a crime.

Penalties for Inchoate Crimes

The punishment for a conviction of an inchoate crime usually depends on the corresponding offense. Someone convicted of aiding and abetting generally faces the same penalties as those for the main perpetrator. In some jurisdictions, certain other inchoate crimes may carry the same penalties as the corresponding offense. An example of this approach is the federal statute prohibiting an attempt or conspiracy to commit various drug crimes.

Often, though, statutes impose lesser penalties than those for the intended crime. Someone who conspires to commit a felony in Georgia faces no more than half the maximum prison time that they would have faced if they had carried out the crime. Illinois generally classifies conspiracy to commit a felony as one level below the intended crime.

Texas classifies attempt as an offense one level below the intended crime. Michigan imposes up to five years in prison for attempting an offense punishable by five years or more. It imposes up to two years for attempting an offense punishable by less than five years, but no more than half the maximum imprisonment for the completed offense.

Arizona generally provides for a two-level reduction for solicitation. In most cases, New York imposes up to one year for solicitation to commit a felony and up to 15 days for solicitation to commit a lesser offense.

Last reviewed November 2024