Defenses to Incomplete Crimes

Inchoate crimes, which are more commonly referred to as “incomplete” or “attempted” crimes, are crimes that involve the intent to commit a specific criminal offense. Attempted crimes are separate and distinct crimes in the law, because lawmakers want to prevent serious crimes from taking place. Therefore, they punish attempts to commit crimes. Included within the concept of incomplete crimes are attempts, conspiracies and solicitations.

Generally, a person cannot be convicted for both an incomplete or attempted crime and a completed crime. For example, a person cannot be convicted of both attempted murder and murder. There is, however, an exception for the crime of conspiracy. A person can be charged with and convicted of the crime of conspiracy to commit a specific crime and the specific crime itself as well, if the crime was completed.

To be convicted of an incomplete crime, the prosecutor must prove beyond a reasonable doubt that the person charged had the specific intent to commit the actual crime.

Keep in mind that each state has its own distinct system of criminal justice, and then the federal government has its own criminal justice system as well. Each system may have its own unique approach to incomplete crimes.

What Are Some Incomplete Crimes?

The major inchoate or incomplete crimes are:

• Conspiracy: A conspiracy is an agreement between two or more people to commit a crime with the specific intent on their part to achieve the criminal objective, such as a conspiracy to sell drugs or to rob a convenience store. A majority of states now require that the parties to a conspiracy commit an overt act that is part of the crime after entering into their conspiracy.
  • For example, even an act of preparation to commit the crime can be considered a sufficient overt act. If one of two co-conspirators makes a “fake agreement,” then there is no conspiracy as it does not meet the requirement for at least two co-conspirators in agreement to commit a crime;
• Solicitation: The crime of solicitation consists of inciting, counseling, advising, encouraging, or commanding another person to commit a crime, with the intent that the person actually commit the crime. One would be charged with solicitation even if the person solicited has no intent to commit the crime or does not commit the crime. However, if the solicited crime is committed, both parties could be charged with the crime;
• Attempt: The attempt to commit a crime is an act done with intent to commit a crime that falls short of completing the crime. To be guilty of an attempted crime, the defendant must have the intent to commit the crime and take a substantial step or steps toward completing it. Generally, the defendant must be close to successful completion of the crime to be found guilty. But the specific intent is necessary as well, if a person is to be convicted of a criminal attempt.

Are There Any Legal Defenses to Incomplete Crimes?

There are a number of legal defenses available if a person has been charged with an incomplete crime. Of course, as with everything in criminal law, the defenses depend on the law of the state in which the crime is charged and prosecuted. But some standard defenses are as follows:

• Legal Impossibility: If the defendant acts or intends to commit acts, which, if they were completed, would not constitute a crime under any circumstances, then the defendant cannot be guilty of that crime. For example, if the defendant thought that the act they were committing or attempting to commit was a crime, but under the state’s laws it was not in fact a crime, the defendant cannot be convicted of a criminal attempt;
• Withdrawal from a Conspiracy: It is important to know that a co-conspirator would be liable for all crimes committed in furtherance of a conspiracy, even if the co-conspirator did not commit the crimes or intend for the 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, for the defense to apply, the co-conspirator must withdraw before any act in furtherance of the conspiracy has been completed.
  • Also, 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 their conspiracy;
• Feigned Agreement: In defense to a charge of conspiracy, a person charged with the crime may try to show that the agreement made to commit a crime was feigned or fake. This will negate the specific intent element for the actual crime to be completed. However, if the defendant enters into an agreement to engage in illegal conduct with an undercover police officer, the defendant may still be guilty of conspiracy;
• Mistake of Law for Conspiracy: Conspiracy is an agreement to commit a crime made with the specific intent to complete the crime. So, 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 only works for specific intent crimes.

Defendants have the burden of proving an affirmative defense. So, for example, if a defendant wants to succeed with a defense of mistake of law, they would have to convince a jury that they thought they were committing a lawful act, so did not have the necessary specific intent.

What Are the Penalties for Incomplete Crimes?

The punishment prescribed for solicitation, conspiracy and criminal attempts is going to be different in each state. In the case of solicitation, the type of crime that a person solicits another to commit should have an effect on the punishment. Solicitation of criminal conduct would not be punished more severely than the crime that the defendant solicited.

In the case of conspiracy, the crime that is the goal of the conspiracy determines the punishment. The more serious the crime that is the object of the solicitation, or the goal of the attempt or the conspiracy, the more serious the punishment is. Many times, the penalties a person faces for the participation in a conspiracy will be based on the penalties that are imposed for conviction of the underlying offense.

An attempted crime is usually punished less severely than a completed criminal offense. In California, for example, the sentence for an attempt is half the sentence for the same crime if it is completed. So, if the crime attempted is punished by a term of imprisonment in the state prison or county jail, the person who is convicted of an attempt to commit the same crime is punished by imprisonment in the state prison or in a county jail, respectively, for one-half the term of imprisonment prescribed for the completed crime.

The exception to this rule in California is the punishment for attempted first-degree murder, or wilfull, deliberate and pre-meditated murder. The punishment for attempted first-degree murder is life in prison with the possibility of parole. Also, if a person is convicted of an attempted crime for which the maximum sentence is life in prison or death, the person is punished by imprisonment in the state prison for 5, 7 or 9 years.

In Florida, the severity of the punishment for attempt, solicitation and conspiracy depends on how serious the underlying offense is. Generally speaking, since the charges of attempt, solicitation and conspiracy are one step below the commission of a completed crime, they are punished as if they had committed a crime that is one degree less than the completed crime. So, for example:

• If the underlying offense is a capital felony, i.e., one that is punishable by death, the attempt, solicitation or conspiracy is a first-degree felony and is punished as such;
• If the underlying offense is a first-degree or life felony, i.e., punishable by life in prison, the attempt, solicitation, or conspiracy is a second-degree felony.

There are several exceptions to this scheme in Florida. For example, if the intended crime is burglary, a third-degree felony, the attempt, solicitation, conspiracy charge is also a third-degree felony.

In most states, members of a conspiracy are criminally liable for all crimes that are committed in furtherance of the conspiracy. So, the person who drives the get-away car in a bank robbery, can be criminally liable for the murder of the bank teller that was perpetrated by a co-conspirator during the robbery. So, even if the person who drove the get-away car argues that all they did was drive the car, their argument does not help them either at trial or when they are sentenced. They can receive the same punishment as the co-conspirator who pulled the trigger.

Do I Need a Lawyer to Aid Me with a Defense to an Incomplete Crime?

If you have been charged with solicitation, conspiracy or an attempted crime, you may have several options when it comes to raising a defense. It is to your advantage to consult a criminal defense lawyer to help you with your case. Criminal laws can be very different in different states, so your lawyer can answer all the questions you may have about the law in your state.